State v. Smith

NO. 84-462

I N THE SUPREME COURT O THE STATE O M N A A
F F O T N

1986

THE STATE O MONTANA,
F

P l a i n t i f f and R e s p o n d e n t ,

-vs-

CFAIG STEVEN SMITH,

D e f e n d a n t and A p p e l l a n t .

APPEAL FROM: The D i s t r i c t C o u r t of t h e E i g h t h 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 ,
The H o n o r a b l e J o h n M. McCarvel, J u d g e p r e s i d i n g .

COUNSEL O RECORD:
F

F o r A p p e l l - a n t:

Moses Law F i r m ; C h a r l e s F. Moses a n d J a y F. Lansing
a r g u e d , B i l l i n g s , Montana

For 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
John P a u l s o n a r g u e d , A s s t . A t t o r n e y G e n e r a l , Helena
P a t r i c k I,. P a u l , County A t t o r n e y , Great F a l l s , Montana

Submitted: October 22, 1935

Decided: March 1 4 , 1986

Filed: MAR 14 1986

- -
-
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
Defendant appeals the jury verdict convicting him of
deliberate homicide in the Eighth Judicial District, Cascade

County, on May 9, 1984.
Me affirm.
This is the second time this Court has considered this
matter. In November 1982 defendant Craig Steven Smith, an
airman stationed at Malmstrom Air Force Base, was charged
with the deliberate homicide of his fiancee Susan Galloway on
or about October 23, 1982. The first trial ended in mistria.1
on January 18, 1984, at defense counsel's request, after the
State questioned the victim's father as to what he had
learned about defendant's sexual past. The basis for mistrial
was a failure of the prosecution to give the Just notice of
prior crimes introduction. See State v. Just (19?9j, 184
Mont. 262, 602 P.2d 957.
Following defense motions for dismissal on double
jeopardy grounds and for change of venue, defendant filed. a
notice of appeal April 18, 1984. The State sought a writ of
supervisory control on April 19, 1984. We affirmed the order
denying the motion to dismiss after oral argument on the writ
April 24, 19P4. The second trial began April 25, 1984. A
Cascade County jury found defendant guilty of deliberate
homicide on May 9, 1984, and the court sentenced.
defendantlappellant to one hundred years on June 19, 1984.
Appeal followed.
Appellant raised thirteen issues in his brief. Howev-
er, we restate and decide the following issues as being
dispositive of this appeal:
I. Whether he was twice put in jeopardy?
 11. Whether the court erred in granting the
State's motion to add the name of John
Wehrenberg, a soil geologist, as an expert
witness on April 23, 1984?
111. Whether the court erred in denying h i s
motion for a mistrial?
IV. Whether the court erred in failing to
strike the testimony regarding shoe prints?
V. Whether the court erred in denying his
motion for a change of place of trial?
VI. Whether the court erred in admitting state-
ments made to Arne Sand, polygraph examiner?
VII. Whether the court erred in improperly
instructing the jury by failing to give the
State's offered omnibus or alternatively failing
to reread the preliminary instructions to the
jury, by failing to give certain instructions,
and by giving the instruction on the statutory
definition of "knowingly"?
On October 22, 1982, appellant, hereafter referred to
as defendant, appellant or Smith, and Susan Galloway ate
dinner and played cards at her brother's home. The couple
left at about midnight. The next morning at about 9:00 a.m.,
Smith called Susan's family and said she was not at the house
where she was "house-sitting" when he called, and he was
concerned. The family mobilized. Upon gathering together
with Smith, th.e family noticed a jagged cut sewn up on his
right hand. He told them and the police later that week that
Susan had dropped him off at his apartment, that he went
right to bed but woke up about 4: 00 a.m. , opened an orange
juice can and cut himself on the can, and then went to
Mzlmstrom AFB to have the cut t.reated.
The family ccnducted air, water and ground searches
independently and in conjunction with law officers. On
October 23, 1982, a dam worker spotted a reflection in some
heavy brush d o w n the cliff from an overlook to Rainbow Dam,
about one mile from Malmstrom AFB in an area Susan's father
had once indicated to Smith was where cars were abandoned,
unretrieved. Susan's body was discovered in the trunk of her
car. She had been hit on the head with a bottle numerous
times and then stabbed in the neck multiple times with the
jagged edge of the then broken bottle. She had lost a lot of
blood, only a small part of which was in the interior and the
trunk. A convenience store clerk was to testify later that
Smith and Susan had bought a bottle of pop at about midnight
October 22, 1982.
A fellow airman had seen Smith at Malmstrom on October
22 at the time he said he was at his apartment in bed.
Although he no longer lived in the Malmstrom dorms, smith had
come out of the bathroom wet, clutching a bundle of clothes.
He was only wearing jogging shorts and a T-shirt. He then
went to another friend's door and asked for a ride. He said
he had been at the theater, gotten drunk, passed out, and
awoke to find "the other guys" gone. He told his friend to
say nothing because he did not want his fiancee to know. His

friend gave him a ride home at about 2: 30 a.m. October 23,
1982.
The sheriff's department scheduled an appointment with
Smith for a polygraph examination on October 29, 1982. Smith
came in voluntarily. He signed an "advisement of rights"
form and consented to take the test. Sheriff's Deputy, Arne
Sand, administered the test in three one-hour parcels. After
the test, they went back to another office. Another deputy
came in with a note stating that there was evidence linking
five shoe prints at the scene with Smith's tennis shoes,
"same size, same design." Sand showed the note to Smith and
asked him if he knew what had been used to kill Susan and if
he had killed her. Both times, Smith nodded affirmatively,
Sand later testified. At this time at the sheriff's request,
Sand and Smith went with the sheriff to the county attorney's
office where, after some discussion, the county attorney
decided to arrest Smith. After jury selection in the first
trial, the court held an evidentiary hearing on the issue of
voluntariness of the admissions and found them voluntary and
admissible.
The first trial endec? in a mistrial. Defense counsel
brought up to the victim's father the subject of a possible
sexual relationship between the engaged couple and asked if
they were "the type. " Under cross-examination from the
State, the father insisted his daughter was not the type but
he had learned that Smith was. In fact, he had learned that
Smith had relations with a thirteen-year-old girl at one
time. Later it was disclosed in chambers that Smith was also
thirteen, but the court still ruled that the State had intro-
duced evidence of prior crimes--possible statutory
rape--without the warning required from State v. Just and
d-eclared a mistrial. The State a-rgued vociferousl-y agajnst a
mistrial, asserting that it was character evidence to refute
the pure character of defendant and not introduced as "a
crime," and that defense had raised the issue of character.
The court on March 19, 1984, denied defense motions for
change of venue and to dismiss the case on double jeopardy
grounds. The court concl-uded that double jeopardy had not
attached because there was no prosecutorial conduct intended
to goad a defense request for mistrial; rather, the prosecu-
tion had acted in a good faith belief that it was refuting
character evidence. The mistake of law as to how far the
State could go did not amount to intentional misconduct
sufficient for dismissal of the second trial on double
jeopardy grounds. The c o u r t f u r t h e r found t h a t a c h a n g e o f

venue m o t i o n was p r e m a t u r e b u t c o u l d b e renewed d u r i n g j u r y

voir dire i f t h e r e was e v i d e n c e o f b i a s o r p r e j u d i c e on a

jury panel.

On A p r i l 1 8 , 1984, defendant f i l e d a n o t i c e o f a p p e a l

on t h e sole issue of double jeopardy. The S t a t e f i l e d a

p e t i t i o n f o r w r i t of s u p e r v i s o r y c o n t r o l on A p r i l 1 9 , 1 9 8 4 ,

asking t h i s Court to suspend t h e rules for review o f the

c o u r t o r d e r and r u l e upon t h e p e t i t i o n by A p r i l 25, 1984, o r

v e r y soon t h e r e a f t e r , o r g r a n t a p p r o p r i a t e r e l i e f . On A p r i l

23, 1 9 8 4 , t h e S t a t e moved t o add P r o f e s s o r J o h n Wehrenberg,

s o i l geologist, t o t h e l i s t of witnesses.

T h i s C o u r t on A p r i l 20, 1984, o r d e r e d t h e d e f e n d a n t t o

respond i n w r i t i n g by noon A p r i l 24, 1984, and h e a r d o r a l

argument t h a t afternoon. In i t s order of A p r i l 24, 1984,

this Court accepted jurisdiction. To e x p e d i t e the matter

upon good cause shown, t h i s Court s u s p e n d e d t h e r u l e s and

immediately reviewed the c o u r t o r d e r on i t s m e r i t s . This

Court affirmed the order denying dismissal of appeal on

double jeopardy grounds. Defense motion f o r a continuance

was d e n i e d w i t h o u t p r e j u d i c e and j u r i s d i c t i o n was i m m e d i a t e l y

remanded.

T r i a l began A p r i l 2 5 , 1984, w i t h j u r y s e l e c t i o n . The

S t a t e presented over f o r t y witnesses. A t t h e conclusion of

the State's case, t h e d e f e n s e moved f o r a m i s t r i a l on t h e

g r o u n d s t h a t w i t n e s s Wehrenberg s h o u l d n o t h a v e b e e n a l l o w e d

t o t e s t i f y w i t h o u t t h e d e f e n s e ' s o p p o r t u n i t y t o g e t i t s own

expert. With t.he n o t i o n d e n i e d , t h e d e f e n s e p u t on i t s c a s e .

On t h e l a s t d a y o f t r i a l , d e f e n d a n t t o o k t h e s t a n d a n d

testified as to the inconsistencies of his story eighteen

months e a r l i e r . H e c l a i m e d h e was actually acting a t the
request of an OSI agent, a gray haired man in a blue suit, to
help in a drug bust as a package courier. He testified that
he had started this work in July 1982. As a security police-
man, he testified he found it logical that he would be ap-
proached for such an assignment. He also testified that when
he returned to his apartment, two men told him they were the
people he had been delivering packages for and to come with
them bringing a change of clothes and he cut his hand climb-
ing a fence after they threw him in a ditch.
In rebuttal, the State called two OSI personnel, one a
lieutenant colonel in charge of regional operations and
another OSI agent in Great Falls. They testified that Smith
was never a source of information and that he had no dealings
in local OSI drug surveillance.
At the settlement of jury instructions, defense counsel
had no objection to State's numbered 3, 6, 11, 12 and 21.
Defense did object to State's number 13 as a peremptory
Sandstrom instruction, the statutory definition of "knowing-
ly." See Sandstrom v. Montana (1979), 442 U.S. 510, 99 S.Ct.
2450, 61 L.Ed.2d 39. The State objected to defendant's
proposed number 2 as repetitive and defendant withdrew the
instruction. Defense counsel did not object to the instruc-
tion on disregarding the testimony of Wehrenberg. After the
court stated on the record that it would give instructions
1-26 and would not reread the preliminary instructions but
would send them to the jury, defense counsel had no
objection.
Not until after the court read the final instructions
did the defense counsel ask for a hearing in chambers outside
lury presence. Defense complained that the court should have
read State's proposed # 2 to make the omnibus complete. The
ccurt denied the defense objection, saying that it had given
most of the instructions and tha.t to do as defense requested
would result in repetition. The court noted that the parties
had been given their opportunity to object before the reading
of the final instructions.
We will consider additional procedural facts as they
apply to particular issues raised in the following
discussion.

Issue I. DOUBLE JEOPARDY.
Appellant first raises the issue of double -jeopardy
constitutional protection as a bar to retrial after a defense
motion for mistrial, claiming that the State intentionally
provoked defendant into moving for mistrial under the stan-
dard of Oregon v. Kennedy (1982), 456 U.S. 667, 102 S.Ct.
2083, 72 L.Ed.2d 416. This Court already rejected this claim
in its April 24, 1984, order following the hearing on the
writ of supervisory control. State ex rel. Racicot v. Dis-
trict Court of the Eighth ?udicial District, Montana Supreme
Court No. 84-176. Therefore, appellant is precluded from
relitigating his claim of double jeopardy und.er the doctrine
of res judicata. See Meagher Co. Water District v. Walker
(1976), 169 Mont. 358, 361, 547 P.2d 850, 852.

Issues I1 and 111. ADDING NAME TO WITNESS LIST AND REFUSING
TO GRANT A MISTRIAL.

Appellant contends that the court did not have juris-
diction to grant the State's motion to add Dr. John
Wehrenberg's name to the witness list on April 23, 1.984. If
this Court finds jurisdiction, then appellant urges us to
find error in that the State did not satisfy the "good cause"
requirement of S 46-15-301 (11, MCA, (repealed 19851, and that
this was so highly prejudicial as to merit a mistrial-.
1. Jurisdiction - - -
to add name. On April 13, 1984, appel-
lant filed a notice of appeal contesting the double jeopardy
portion of the court order filed March 19, 1984, denying
defense motions for change of venue and dismissal on double
jeopardy grounds. The State filed its writ for supervisory
control on April 19, 1984. This Court accepted jurisdiction
on April 24, 1984.
The appeal of April 13, 1984, was premature, since an
appeal may be taken by a defendant "only from a final judg-
of conviction and orders after judgment which affect the
substantial rights of the defendant." Section 46-20-104(1),
MCA. See, e.g., State ex rel. La Flesch v. District Court
(1974), 165 Mont. 302, 529 P.2d 1403. Therefore, the court
still had jurisdiction. However, the question of jurisd-bc-
tion on April 23, 1.984, was irrelevant after the court con-
sidered the question on April 25, 1984, as to whether Dr.
Wehrenberg should be allowed to testify, and again reviewed
the issue on May 3, 1984, before he testified.
The court has the discretion to consider and endorse
additional expert witnesses, even on the day of trial. State
v. Liddell (Mont. 1984), 685 P.2d 91.8, 41 St.Rep. 1293; State
v. McKenzie (Mont. 1980), 608 P.2d 428, 37 St.Rep. 325.
Because the court did so after the Supreme Court order of
April 24, 1984, the issue 0 2 jurisdiction when the motion was
filed on April 23, I 984, had become moot. The motion was
effectively renewed in court.
2. "Good" cause - - witness.
to add Appellant next claims
that the court abused its discretion in endorsing Dr.
Wehreiiberg without notice and opportunity to he heard on
April *23, 1984, and without good cause shown as to the delay
in producing the witness. This Court has not required notice
and hearing for such motions. See, e.g., State v. Rozzell
(1971), 157 Mont. 443, 486 P.2d 877. Furthermore, appellant
had ample opportunity to be heard at the commencement of
trial. Finally, the court granted his motion to strike the
testimony and instructed the jury to disregard it.
Appellant contends that the State failed to establish
the good cause requirement of S 46-15-301 (1), MCA, (repealed
1985) (in effect at the time of trial): "The prosecution
may, anytime after arraignment, add to the list the names of
any additional witnesses upon a showing of good cause."
Claiming that the delay was due to a continued oversight on
the part of the State to add the witness, appellant asserts
that the good cause requirement under State v. Haag (1980),
176 Mont. 395, 401, 578 P.2d 740, 744, has not been met.
However, our opinion in Haag clarified by stating: "Lack of
knowledge by the State as to the names of witnesses or poten-
tial relevancy of witnesses' testimony provides a legal
excuse for not listing the witnesses' names on the informa-
tion." Haag, 578 P.2d at 744.
The facts of this case are distinguished from Haag in
that the State claimed an initial lack of knowledge as to
what a soil scientist could testify. Once the State request-
ed the information and received the report and his testimony
was deemed relevant, Dr. Wehrenberg became a "known witness."
The State immediately moved to add his name to the witness
list. There was no continued failure or oversight to do so
once the State realized the testimony was rel-evant.
Appellant further contends that to meet the "good
cause" threshold requirement, the State must have established
a "subst.antia1 reason," e . , one that afforded a Legal
excuse. State 77. Klein (1976), 169 Mont. 350, 547 P.2d 75,
77. The State has its legal excuse in "lack of knowledge. "
See Haas, supra. Then the court should determine whether
there was prejudice based upon surprise, and, if so, whether
the prejudice could be overcome by the grant of a
continuance.
The record indicates that the court heard the argument

from defense counsel on April 25, 1984, stating that the
prejudice he was relying upon was that he should have equal
opportunity to get his own expert and could not do it over
the weekend. Counsel said that he could get an expert recom-
mended by a physicist in Bozeman. The court determined that
the trial would last a long time and counsel would have
adequate time. The State offered to make every effort to
assist counsel and proposed willingness to forego the testi-
mony rather than continue the trial, if counsel could not get
an adequate examination. The court then recommended that the
State present Wehrenberg's testimony late in trial so as not
to prejudice the defendant. Finally, the court denied the
motion for continuance without prejudice, in the event that
the State should want to present the testimony and defense
should find itself unable to find an expert to rebut the
testimony.
On Kay 3, 1984, in proceedings in chambers, defense
counsel stated that he had immediately made contacts to find
an expert. One was available in Bozeman and indicated he
could do the soil testing possibly within forty-eight hours
of receipt. For an unexplained reason, counsel was not
satisfied with this expert's credentials and searched fur-
ther, finding others in-state who were unable to do it and
who referred him out-of-state. The record indicates that the
State made every effort to find experts and found two in
Bozeman that Dr. Wehrenberg said were qualified to testify.
The facilities and the soil samples at the State Laboratory
were available to anybody. The State was willing to trans-
port the samples any place. The court concluded that defense
had not been prejudiced by lack of time to secure its own
witness and ruled to permit the introduction of the
testimony.
The State called Dr. Wehrenberg following witness Bill
Vewhouse's testimony on footprints and defendant's shoes.
From qualifying e s an expert for purposes of testimony to
conclusion of his testimony, Wehrenberg's testimony on record
consisted of fifty-five pages of transcript out of approxi-
mately 2000 pages of testimony. After five more witnesses
testified, defense counsel made a motion to strike Dr.
Wehrenberg's testimony for lack of notice and opportunity to
secure a witness, based upon testimony u ~ d e rcross-examina-
tion that it took nineteen days to conduct testing of soil
samples. At this time the court granted the motion and gave
a cautionary instruction to the jury.
Not until the State concluded its case two witnesses
later (and seven after Wehrenberg's testimony) did defense
counsel move for a mistrial on the ground that Wehrenberg's
testimony could not be cured by striking and giving the
instruction and that the testimony would be so highly preju-
dicial as to prevent a fair trial. The court denied the
motion for a mistrial. The rulings of the District Court
with relation to testimony of witness Wehrenberg, if errone-
GUS, amount to harmless error. Other evidence submittec? to
the jury clearly established the guilt of the defendant, and
the jury so found.
3. Refusal - grant - mistrial.
to a Defense counsel
demonstrated no prejudice to defendant from the testimony,
nor did he demonstrate that the jury failed to heed the
cautionary instruction to defendant's prejudice. The court
further showed no abuse of discretion in that initially there
appeared adequate time to overcome any surprise in adding the
witness's name, without a continuance, and not until cross-
examination of the witness did defense make a case that he
did not have adequate time to get a prepared and qualified
expert. At that time the court properly exercised its dis-
cretion in granting the motion to strike the testimony.
The striking of erroneously admitted evidence and admonishing
the jury to disregard it serves to cure error. State v.
Bradfcrd (1978), 175 Mont. 545, 551, 575 P.2d 83.
On appeal we are asked to determine whether there was
zbuse of discretion in refusing to grant a mistrial. The
District Court is in the position to observe the event and
the reaction of jurors, unlike an appellate court, and there
must be necessity to order a mistrial. State v. Close (Mont.
1981), 623 P.26 940, 946, 38 St.Rep. 177. Here we find no
abuse of discretion. The court granted. defendant's motion to
strike the testimony, which would have been incomprehensible
to a jury without a cautionary instruction. The court was in
the best position to determine if the brief testimony of
Wehrenberg adversely affected the proceedings and properly
found no prejudice once the testimony was stricken.
Issue IV. TESTIMONY OF FIREARM AND TOOL MARK EXPERT.
Appellant contends that the Court's failure to strike
the testimony of witness William Newhouse was error because
the testimony (I) was not relevant under Rule 401,
Nont.R.Evid., and (2) lacked a proper foundation in that an
expert was not required where ordinarv persons could reach
their own conclusion without expert assistance.
1. Relevance. Newhouse was qualified by the District
Court, without objection, as an expert in firearm and tool
mark identification, including shoe print identification.
His testimony involved a comparison of plaster casts of shoe
prints from the scene with defendant's shoes. Although he
could not positively identify defendant's shoes as making the
shoe prints, he did testify that the impressions were exactly
like defendant's shoes based upon four identifying charac-
teristics. Appellant contends that Newhouse testified to
"possibilities not probabilities" and "similarities not
identities." Relevance under Rule 401, Mont.R.Evid., means
having a tendency to make a fact more probable or less proba-
ble than it would have been without the evidence, not more
possible or less possible, he claims. Yet, counsel did not
object to Newhouse's conclusions at the trial as inadmissible
for lack of relevance, only later moving to strike the
testimony.
Appellant has urged a novel interpretation of rele-
vance, hut we are not persuaded. Evidence is relevant if it
naturally and logically tends to establish a fact in issue.
See McGuinn v. State (1978), 177 Mont. 215, 221, 581 P.2d
417. Here, the fact in issue was the presence of defendant
at the crime scene. Newhouse's testimony as to the similari-
ties between the shoes and the shoe prints at the scene
tended to make more or less probable this fact in issue. We
accepted expert testimony as to similarity of a defendant's
boots to footprints at a crime scene as relevant without
question as part of the cumulative circumstantial evidence in
State v. Briner (1977), 173 Mont. 185, 567 P.2d 35.
Because Newhouse could not identify the prints posi-
tively "to a degree of scientific certainty," appellant urges
this Court to find the testimony inadmissible. F e find no
J
error in the court's refusal to strike the testimony. We
find the reasoning persuasive in State v. Kelly (Ariz. 19741,
526 P.2d 720, cert. denied, 420 U.S. 935: expert testimony
linking footprints at the scene of a crime to shoes belonging
to defendant, absent a positive identification, is admissi-
ble, and the imprecision of the expert opinion goes to the
weight of evidence for the jury, not admissibility of the
evidence.
2. Foundation for expert opinion. Appellant claims
that Newhouse's testimony should have been stricken because
It did not satisfy the requirements for expert testimony
under Rule 702, Mont.R.Evi-d., i.e., the subject was of common
knowledge and persons of ordinary education could reach a
conclusion from their own common experience as intelligently
as the expert witness. State v. Howard (1981), 1-95 Mont.
400, 404, 637 P.2d 15, 17; State v. Campbell (1965), 146
Mont. 251, 258, 405 P.2d 978, 983. We disagree that expert
testimony was unnecessary to "assist the trier of fact to
understand the evidence or to determine a fact in i-ssue"
(Rule 702, Mont.R.Evid.) in the matter of shoe prints.
Newhouse had specialized knowledge pertinent to identifying
characteristics of shoe prints, knowledge which was not
within the common knowledge of men of ordinary education.
The foundational requirement for the necessity for expert
testimony was met.

Tssue V. CHANGE OF VENUE
Following a hearing on March 13, 1984, the District
Court issued its order finding that defendant's pretrial
motion for change of venue was premature hut could be renewed
during voir dire if prejudice or bias was evident. Appellant
moved to change the place of tria.1 on April 26, 1984, after
jury selection. The court denied the motion, noting that it
had granted every defense challenge for cause. Appellant
claims that the court erred in denying the motions for change
of venue in that the dissemination of the inadmissible testi-
mony which caused the mistrial January 16, 1984, led to a
reasonable apprehension that the accused could not get a fair
trial.
Denial of a motion for change of venue is not revers-
i-ble error in the absence of an abuse of discretion by the
trial court. State v. Paisley (Mont. 1983), 663 P.2d 322, 40
St.Rep. 763; State v. Kirkaldie (1979), 179 I l n . 283, 587
vot
P.2d 1298. The record indicates no abuse of discretion.
Although appellant claims denial of fair trial because nearly
a11 of the impaneled jury had heard of the case, he fails to
demonstrate "such prejudice thzt a fair trial cannot be had
in such county." Section 46-13-203(1), MCA. Appellant did
not demonstrate at pretrial (nor does he establish on appeal)
tha.t a prejudicial atmosphere existed within the venue which
created a reasonable apprehension that he could not get a
fair trial. See State v. Ritchson (Mont. 19821, 647 P.2d
830, 39 St.Rep. 1201.
 Knowledge on the part of jurors is not sufficient and
cannot be equated with prejudice. To be granted a change of
venue, a defendant must prove that the news reports were
inflammatory and that they actually inflamed the prejudice of
the community. Ritchson, 647 P. 2d at 832. The voir dire
failed to raise such indications of prejudice. Of forty-one
potential jurors, all but one had read or heard of the case.
Yet only ten could recal-l any specifics and only three of
these had formed a preliminary feeling. Following
in-chambers questioning, these three were excused. The court
granted all. of the defense counsel's challenges for cause.
Defendant passed the unchallenged jurors for cause with
respect to the issue of pretrial publicity and later passed
all prospective jurors for cause at the conclusion of his
voir dire. He did not challenge the jury panel as a whole or
renew his motion for change cf venue until the next day.
We can find no prejudice. The court did not abuse its
discretion in denying the motion for change of venue.

Issue VI. STATEMENTS MADE TO POLYGRA.PH EXAMINER.
Appellant contends that the court erred in admitting
the testimony of Arne Sand, the pol-ygraph examiner, concern-
ing admissions made following a polygraph examination. There
are two prongs to appellant's claim: (1) the admissions were
part of a lie detector test process and lie detector test
results are inadmissible; and (2) the admissions were not

voluntary.
1. Lie detector
- - tests - statements
and afterward.
Appellant states the rule in Montana in asserting that the
Presults of polygraph examinations are not admissible as
evidence in a criminal trial. State v. Bashor (Mont. 1980),
614 P.2d 470, 479, 37 St.Fep. 1 0 9 8 ; State v. Beachmarl (Mont.
1980), 616 P.2d 337, 37 St.Rep. 1 5 5 8 . There is no a-uthority
cited for the claim that any statements made during the
post-interview are also inadmissible. Furthermore, appellant
is mistaken in equating test results with statements made
during and after the questioning. The results of a polygraph
examination involve the test-giver's evaluation of responses
and therefore invade the province of the jury when used
merely to support the credibility of the witness. See Bashor
v. Risley (9th Cir. 1382), 730 F.2d 1228, 1238. Statements
involve direct responses to questioning and not the evalua-
tion of the credibility in responding.
The thrust of appellant's challenge is that the
"post-interview" is so integrated with the test that any
evidence is inadmissible. In examining the record we find
appellant's claim stretches the alleged immunity of testimony
occurring in the polygraph examination.
The period of time in which the defendant affirmed to
Sand that he killed Susan was not part of or related to the
questioning under the polygraph examination procedures. Sand
had disconnected the test and they went back to the office.
While there, Sand received "other unconnected information"
not used in the examination, i.e., a note from an investigat-
ing officer. This note indicated a match of Smith's shoes
with five different footprints found at the scene. Sand
testified that he then asked Smith if he knew what had killed
Susan and if he had killed her. Smith's response was an
affirmative nod both times, Sand testified.
Even if the ~ppellant had challenged any admissions
during the test (which he did not do), we do not find his
argument persuasive that these responses had anything to do
with the test. Nor do we find that Sand's testimony related
"test resultsw--that is, an evaluation of the credibility of
the witness. Sand merely related the affirmations he had
perceived from the accused. It was the jury's province to
evaluate the testimony.
Statements, when they are admissions of the accused and
when testimony does not involve an evaluation of the truth of
his response, may be admitted into evidence, provided that
the accused consented to the test and there was no coercion.
See, 29 Am.Jur.2d Evidence, § 551. The court here properly
granted the defendant's motion to keep out all evidence that
there was a polygraph examination. The State and its witness
carefully avoided any allusion and treated the examination
like any other interview. In fact, defense counsel success-
fully brought out the exculpatory responses made during that
test, without the State's revealing the specific nature of
the questioning. The defense, thus, was allowed to use his
responses during the examination as exculpatory statements.
Appellant, however, only challenges the admitting of those
responses made afterward to questions unrelated to the exam
procedure. The issue is not whether statements made in the
period surrounding the exam are admissible, but rather wheth-
er incriminating admissions shoul-d be admitted after a waiver
of rights and consent to take the test.
This Court has not dealt with the issue of admissibili-
ty of an otherwise voluntary confession following a polygraph
examination, even though the results of the exam itself would
not have been admissible. Appellant has cited no authority
for his contention that if the lie detector test results
cannot be admitted into evidence, then everything surrounding
the process is inadmissible. The State, however, cites from
other jurisdictions in which the confession was a.dmissibie,
even though the results would not have been. See State v.
Tucker (Ariz. 1978), 574 P.2d 1295, cert. denied 11978), 439
U.S. 846, 99 S.Ct. 144, 58 L.Ed.2d 147; State v. Clifton (Or.
1975), 531 P.2d 256. We find that the admissions were admis-
sible into evidence.
2. Voluntariness - confession.
of The District Court
hel-d a hearing on the voluntariness of the admissions after
the jury was selected and before the first trial began. The
court made a specific finding that the admissions were volun-
tary as well as admissible. There is substantial evidence in
the record to support the finding: Smith signed a rights and
waiver form to take the test, he had been fully advised of
his constitutional rights and he knowingly waived these
rights.
Appellant makes no specific charges of promises,
threats, duress or coercion, nor does he demonstrate unfair
or unreasonable examination procedures. He makes a
bare-bones allegation that the test took three hours, after
which Sergeant Sand was handed the note. Appellant also
claims that he was induced to sign a waiver to take a poly-
graph test, expecting to get exculpatory evidence in exchange
for telling the truth. The waiver failed because he was not
told that he could not use test results, appellant contends,
and therefore any statements were not voluntary. As dis-
cussed previously, appellant did use the statements if not.
the test results as to credibility. This is not sufficient
to override the court's finding in the voluntariness hearing.
Voluntariness of a confession is a factual question
addressed to the discretion of the trial court. We will not
overrule its determination if it is supported by substantial
credible evidence. State v. Allies (Mont. 1980), 621 P.2d.
1080, 1087, 37 St.Rep. 2089, 2097-2098. Whether a confession
is voluntary depends upon the "totality of the circumstances"
of the particular case. State v. Mercer (M0n.t. 1981), 625
P.2d 44, 47, 38 St.Rep. 312, 315. We find that the court
properly determined based on substantial credible evidence
that the statements were voluntary under these circumstances.

Issue VII. JURY INSTRUCTIONS
Appellant claims that the jury was improperly instruct-
ed. He argues that the trial court should have reread the
preliminary instructions which the court gave before the
introduction of evidence or, alternatively, shou1.d have given
the omnibus instruction offered by the State. Next, he
argues that the court erred in failing to give certain in-
structions offered by either the State or the defendant.
Finally, he claims that the court erred in giving the in-
struction on "knowingly."
1. Failure - give omnibus - - reread preliminary
to or to
instructions. The court did not reread the preliminary
j-nstructions. The court chose not to give the omnibus as a
preface to final instructions read at the close of the trial
because some of the matters were repetitive of preliminary
instructions. Instead, the court chose to send the prelimi-
nary instructions in with the final instructions t.o the jury.
Appellant contends that these instructions not read in
the omnibus or reread from the preliminaries denied the jury
the usual cautionary and limiting instructions . We note
that appellant did not object at the time the court informed
the parties that it v,rould not reread the preliminaries and in
fact only raised the objections after the jury was charged.
Appellant has not shown any prejudice affecting appellant's
substantial rights resulting from the District Court's
decision not to reread the preliminary instructions. As such
there is no reversible error. Section 46-20-702, MCA.
2. Court's refusal - give proposed
to instructions.
Next, appellant argues that the court erred in failing to
give defendant's proposed instruction numbers 6, 15, and 21,
and State's proposed instruction number 6. These covered
reasonable doubt arising from lack of evidence, construction
of evidence subject to two interpretations, weight of testi-
mony of law officers and other state officials and a supple-
mentary instruction on circumstantial evidence. The State
did not object to these instructions, yet they were denied by
the court. Defendant did not object to the court's denial at

settlement, only raising his desire to have the court read
these after the jury had been charged.
It is within the prerogative of the trial court to
determine which instructions are necessary. State v.

Meidinger (1972), 160 Mont. 310, 322, 502 P.2d 58, 65. Where
specification of error concerns instructions which were not
objected to at the time the instructions were settled, they
cannot be challenged on appeal. Meidinger, 502 P.2d at 65.
We find no error where the jury was on the whole ade-
quately instructed, and the appellant raised no issue of
plain error in the substance. "Reasonable doubt" was covered
without objection in the preliminary instructions, and it was
not error to refuse a supplementary instruction. Defendant
cited no authority to the District Court for number 15 on
circumstantial evidence susceptible to two interpretations.
There was no error to refuse it when the court in its

discretion determined it was only proper in a case resting
entirely on circumstantial evidence. The cautionary instruc-
tion on testimony of law officers , defendant's proposed.
number 21, invades the province of the jury to determine
credibility of witnesses and there is no error in refusing to
give such an instruction. See State v. Mott (1925), 72 Mont.
306, 233 P. 602. There was no error to refuse the State's
offered instruction on two kinds of evidence, direct and
circumstantial-, in that this was adequately covered in the
preliminary instructions.

3. Instruction - "knowingly."
on Finally, appellant
contends that the court erred in giving the St.atelsproposed
instruction number 13 on the statutory definition of "know-
ingly. " Section 45-2-101 (33), MCA. We find no error where
"knowingly" is an element of the offense of deliberate homi-
cide. Section 45-5-102, MCA. Furthermore, defendant offered
no instruction on this element of the offense nor did he cite
any authority to support his position. Appellant acknowledg-

es that this Court has upheld the definition against such
constitutional and other grounds. State v. Coleman (1379),
185 Mont. 299, 605 P.2d 1000. This Court is not obligated to
refute a bald assertion, absent specific argument or authori-
ty and void of definable prejudice. McGuinn v. State (19783,
177 Mont. 215, 220, 581 P.2d 417, 420.
Appellant has attempted to demonstrate cumulative error
in his attack upon the jury instructions. Yet he has demon-
strated no prejudice to the defendant nor has he shown that
the instructions were inadequate on the whole.
This Court reviews jury instructions as a whole and., if
they fairly cover the issues to tender the case to the jury,
they are sufficient. State v. Brooks (1967), 150 Mont. 399,
436 P.2d 91. We f i n d t h a t t h e j u r y i n s t r u c t i o n s a s a whole

were sufficient.

The v e r d i c t o f the jury and s e n t e n c e of the D i s t r i c t

Court a r e affirmed.

W e concur:

Justices
Mr. J u s t i c e John C . Sheehy, d i s s e n t i n g :

I dissent.

J u r i s t s have no d i f f i c u l t y i n accepting t h e theory of

d-ouble jeopardy . The constitutional goal tha.t a person

should n o t be p u t a t r i s k f o r h i s l i f e , p r o p e r t y , o r freedom

more than once for the same alleged crime is to prevent

c o n t i n u e d p r o s e c u t i o n s by t h e S t a t e u n t i l it f i n a l l y g e t s t h e

person convicted. As a concept, t h a t i s q u i t e acceptable.

I n p r a c t i c e however, i n a 3.ouble jeopardy s i t u a t i o n , j u r i s t s

f a c e a d i f f i c u l t problem. If double jeopardy has i n f a c t

occurred t h e person, though he may be g u i l t y , walks f r e e . A

double jeopardy issue such as we find here places an

a p p e l l a t e c o u r t between t h e hammer and t h e a n v i l , t o temper

t h e s t e e l o f t h e law.

I t i s m y judgment t h a t t h e d e f e n d a n t h a s been s u b j e c t e d

t o d o u b l e jeopardy.

The f i r s t t r i a l o f Smith was a j u r y t r i a l . The j u r y was

impaneled and sworn and w i t n e s s e s were sworn and t e s t i f i e d .

Jeopardy t h e r e f o r e a t t a c h e d . C r i s t v. E r e t z (19781, 437 U.S.

28, 98 S.Ct. 2156, 57 L.Ed.2d 24. What happened i n t h e f i r s t

t r i a l t o b r i n g a b o u t t h e motion f o r m i s t r i a . 1 i s n o t r e l a t e d

i n t h e m a j o r i t y o p i n i o n and. I t h e r e f o r e s e t it f o r t h h e r e .

Counsel f o r Smith i n c r o s s examining Edwin Galloway, t h e

father of the deceased victim, elicited the following

testimony:

Q. Were they sl-eeping together? A. No, sir.

Q. Are you s a t i s f i e d o f t h a t ? A. Yes, s i r .

Q. And t h a t t h e y were b o t h j u s t n o t t h e t y p e
because of t h e i r r e l i g i o u s b e l i e f t o be s l e e p i n g
 together, right? A. 1 don't know about him, but I
know about her.
Q. There is nothing you knew about him that would
cause you to disbelieve that he had the same and
equal feelings about the situation? A. Not a t
that time. Since then I do have.
Q. Well, it is just an opinion of yours then,
isn't it? A. Yes, sir.
In redirect examination the prosecution exp'mined as follows:
Q. Mr. Moses was talking to you about your
daughter and the Defendant. I'm not sure I was
able to catch all of it. Something about they
weren't the type. What was your response to that
question? A. I believe he was talking about
sleeping together, and mine was I knew what Sue was
but I did not know what Smith was doing or his
intentions.
Q. At the time, and reflecting back now, Ed, at
the time you were fairly confident he wasn't the
type, either, weren't you? A. Yes, sir.
Q. And didn't you say that since then you have
changed your opinion? A. Yes, sir.. ..
(Author's note:. If the prosecution had stopped here,
there could be no quarrel. Instead, he pressed on.)
Q. (By Mr. Racicot) .
What was the information you
received, Ed? A. That he w a s corresponding and
had another girl that he was going to marry.
Q. Did you receive any informat-ion concerning his
previous sexual activity? A. Yes, I d.id.
Q. And what was that information? A. That he
went with a girl here in town an6 had sex with her
before he had went with Susan.
(Author's note: Now the prosecutor moved in for the
kill. 1
Q. Did you receive an.y information about some of
the girl friends he ha.d back in Virginia? A. Yes,
s1r.
0. And what did that information entail? A. That
he had impregnated a girl, and she was 13, and. the
girl aborted the baby.
 0. So t h a t was t h e i n f ~ r m ~ t i otn a t changed your
h
o p i n i o n ? A. Yes. T h a t and o t h e r g o s s i p .

Following that examination by the prosecutor, the

d-efendant moved t h e D i s t r i c t C o u r t f o r a m i s t r i a l and t h e

D i s t r i c t C o u r t was f o r c e d t o a g r e e . Accordingly t h e f i r s t

j u r y was d i s c h a r g e d and t h e f i r s t t r i a l ended.

Defei1dan.t ' s counsel thereafter moved to dismiss the

p r o s e c u t i o n e n t i r e l y on t h e ground t h a t s i n c e j e o p a r d y had

attached to the first instance, further prosecution by a

second t r i a l would c o n s t i t u t e d o u b l e j e o p a r d y . The Di s t r i c t

Court d e n i e d t h e motion t o d i s m i s s , h o l d i n g :

The c o u r t f i n d s t h a t t h e p r o s e c u t o r was n o t g u i - l t y
o f goading o r m i s c o n d u c t , t h a t t h e p r o s e c u t o r a c t e d
i n good f a i t h u n d e r t h e m i s t a k e n b e l i e f t h a t s i n c e
defense counsel sought t o introduce evidence of
good c h a r a c t e r t h a t t h e S t a t e was j u s t i f i e d i n
disproving t h e same, particularly as to the
defendant's sexual past. This, i n the c o u r t ' s
o p i n i o n , was a m i s t a k e o f law on t h e p a r t o f t h e
p r o s e c u t i o n a s t o how f a r t h e S t a t e c o u l d go i n
introducing evidence of bad character and
p a r t i c u l a r l y t h e e v i d e n c e t h a t t h e d e f e n d a n t had
impregnated a 1 3 y e a r o l d g i r l and t h a t s h e had an
abortion.

The c o u r t concluded t h a t t h e p r e j u d i c i a l e f f e c t o f t h e

evidence f a r outweighed i t s probative value a s evidence of

bad c h a r a c t e r .

The f u r t h e r argument o f c o u n s e l f o r Smith on t h e motion

t o d i s m i s s was t h a t t h e S t a t e had f a i l e d t o g i v e any n o t i c e

of evidence of prior crimes a s required in S t a t e v. Just

(1979), 1 8 4 Mont. 262, 602 P.2d 957. The ~ i s t r i c tC o u r t

referred to our 6ecision in State - -s t
v. J u but made no

decision respecting its applicability. S t a t e - - s t was
v. J u

intended to set up guide rules for district courts in

c r i m i n a l a c t i o n s where i t was t h e i n t e n t i o n o f t h e S t a t e t o

i n t r o d u c e e v i d e n c e o f o t h e r c r i m e s o r wrongs. Under S e c t i o n

404 Montana Rules of Evidence, evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show he acted in conformity therewith. In
this case the acts which the prosecutor elicited from witness
Galloway had no tendency to prove a trait of character to
which he conformed under the charges against him.
When the District Court denied Smith's motion to dismiss
on the grounds of double jeopardy (he had also asked for a
change of venue) Smith appealed the denial of dismissal to
th.i-s Court, which of course, he had a right to do. A
defendant is not required to undergc the second trial before
his appeal of denial of a double jeopardy issue is heard.
I must now set out a timetable for the reader to
understand what happened next. On January 18, 1984, the
District Court had declared the mist-rial in the first case.
On January 27, 1984, Smith filed a motion to dismiss entirely

on the grounds of double jeopardy. On February 2, 1984, the
retrial of the cause was set by the District Court for April
25, 1984. On March 19, 1984, the District Court entered its
order denyinq the motion to dismiss on double jeopardy
grounds. On April 18, 1984, the defendant perfectly within
the time afforded by the rules, filed his notice of appeal
from the denial of his double jeopardy claim.
On April 19, 1984, the State on the relation of the
special prosecutor file6 a petition in cause no. 84-176 in
this Court for a writ of supervisory control requesting this
Court to suspend our rules for appellate review of the
District Court's decision, to vacate the notice of appeal, to
take immediate jurisdiction and to decide the issue of double
jeopardy. On April 20, 1984, this Court issued its order
directing defendant to prepare, serve and file a written
response to the prosecutor's petition by noon of April 24,
1984. Oral argument on the petition was set and had on April
24, 1984 at 1:30 p.m. This Court in the same afternoon after
the hearing made and entered its order affirming the denial
of dismissal on the ground of double jeopardy and ordering
the trial to proceed the next day as previously set on April
25, 1984.
Thus was this Court stampeded into deciding the vital
issue of double jeopardy. Our order for the issuance of writ
of supervisory control in cause no. 84-176 is unpublished.
Three of the then justices, Chief Justice Frank A. Haswel-1,
John Conway Harrison, and L. C. Gulbrandson signed the
plurality opinion. Justice Frank E. Morrison concurred
specially that double jeopardy did not attach but he hoped
that the trial court would consider a motion for continuance
of the retrial.. Justices John C. Sheehy and Daniel J. Shea
dissented to the precipitous action of the plurality and
Justice Fred J. Weber dissented on the ground that the
circumstances of the case did not justify the immediate
action being taken by the court "majority."
The defendant Smith was thus deprived of a measured
approach to a decision on his appeal. Now, the fractured
decision in the supervisory control case, issued a bare four
days after the original pleading was filed, is used by the
majority to bar further consideration of the double jeopardy
issue on the grounds of res judicata! "0, judgment has flown
to brutish beasts and men have lost their reason."
By resorting to xes judicata as its ratio decidendi, the
majority do not have to explain whether they will adhere to
the rule of the Supreme Court of the United States in Oregon
v. Kennedy (1982), 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d
416, 424, or whether they would adopt the expanded rul-e
u n d e r t a k e n by Oregon i t s e l f i n S t a t e v. Kennedy (Or. 1983),

The e f f e c t o f t h e h o l d i n g o f t h e U n i t e d S t a t e s Supreme

C o u r t i n Oregon - Kennedy was t h a t d o u b l e jeopardy w i l l n o t
v.

be found, even though t h e d e f e n d a n t made a s u c c e s s f u l motion

f o r m i s t r i a l , i f t h e c o n d u c t o f t h e s t a t e which b r o u g h t a b o u t

t h e m i s t r i a l was n o t i n t e n d e d by the s t a t e t o provoke t h e

d e f e n d a n t i n t o moving f o r a m i s t r i a l .

The Supreme C o u r t o f Oregon d e t e r m i n e d t h a t t h e U n i t e d

S t a t e s Supreme C o u r t was t o o narrow i n i t s i n t e r p r e t a t i o n o f

t h e e f f e c t of the prosecutorial conduct, and s t a t e d t h a t a

retrial would be barred if the conduct of the s t a t e was

intended to goad t h e d e f e n d a n t moving for mistrial - the
or

p r o s e c u t o r e i t h e r i n t e n d e d a m i s t r i a l o r was i n d i f f e r e n t t o

the resulting mistrial. 666 P.2d at 1325. The Oregon

Supreme C o u r t s a i d :

A test limited t o i n t e n t i o n a l provocation of
m i s t r i a l s , however, h a s two s h o r t c o m i n g s b e s i d e s
t h e question of proof. F i r s t , t h e Supreme C o u r t ' s
a n a l y s i s f o c u s e d on p r o s e c u t o r i a l m i s c o n d u c t , a s i n
t h i s case. The C o u r t a d o p t e d t h a t t e s t i n p a r t
because, within t h e l i m i t s of p r o f e s s i o n a l e t h i c s
and the state's other overriding values,
prosecutors a r e expected t o s t r i v e f o r convictions,
and " o v e r r e a c h i n g " c o u l d be a s s e r t e d o f e v e r y
p r e j u d i c i a l e r r o r t h a t may r e q u i r e a r e t r i a l .

Second, a f i n d i n g t h a t a p r o s e c u t o r i n i t i a l l y
p u r s u e d a c o u r s e o f p r e j u d i c i a l misconduct f o r t h e
purpose of f o r c i n g a m i s t r i a l i s a grave m a t t e r .
Such b e h a v i o r i s a contempt o f court. ORS
33.010 ( c ) , ( d ) . I t a l s o i s a v i o l a t i o n of
p r o f e s s i o n a l s t a n d a r d s t h a t can l e a d t o d i s b a r m e n t
o r o t h e r d i s c i p l i n e , and p e r h a p s o f f e d e r a l c i v i l
rights statutes. See DR 1 - 1 0 2 ( A ) ( 5 ) , 7-102 ( A ) (1);
1 8 U.S.C. 5 2 4 2 . A judge p r e p a r e d t o make such a
f i n d i n g p r o p e r l y would n o t o n l y d e c l a r e a m i s t r i a l
without possibility of reprosecution but also
r e p o r t t h e e p i s o d e t o t h e Oregon S t a t e B a r , Code o f
J u d i c i a l Conduct Canon 3(B) ( 3 ) . But we do n o t
t h i n k t h a t impermissi.ble d o u b l e j e o p a r d y f o r t h e
d e f e n d a n t i s l i m i t e d t o t h e few s i t u a t i o n s i n which
a judge i s s u f f i c i e n t l y convinced o f a p r o s e c u t o r ' s
 improper intentions to invoke those penalties.
That places too heavy a burden on the imference
that a defendant must ask a judge to draw from the
objective conduct and circumstances. To repeat,
punishment of the errant official is not the object
of the guarantee against placing the defendant
again in jeopardy for the same offense. Whether or
not the official's error rises to that level of
culpabj-lity, for purposes of the guarantee we think
it suffices that he has consciously chosen to
engage in prejudicial misconduct, whatever the
motive.
We therefore conclude that a retrial is barred by
article I, section 12, of the Oregon Constitution
when improper official conduct is so prejudicial to
the defendant that it cannot be cured by means
short of a mistrial, and if the official knows that
the conduct is improper and prejudicial and either
intends or is indifferent to the resulting mistrial
or reversal. When this occurs, it is clear that
the burden of a second trial is not attributable to
the defendant's preference for a new trial over
completing the trial infected by an error. Rather,
it. results from the state's readiness, though
perhaps not calculated intent, to force the
defendant to such a choice.

The State of Arizona has also broadened the U.S. Supreme
Court decision in Oregon - Kennedy, holding in Pool v.
v.
Superior Court of the State of Arizona (Ariz. 1984), 677 P.2d
261, that if the mistrial is gra-nted because of the improper
conduct of the prosecutor and the conduct taken as a whole
amounts to intentional conduct - which is pursued. for any
or
improper reason with indifference to the significant danger
of mistrial-, that double jeopardy attaches.
Counsel for Smith in this case contends that even if we
adopt the standard provided by the U.S. Supreme Court in
Oregon - Kennedy, the intent of the prosecutor is the
v.
fulcrum of decision; that we should apply the same tests in
determining that intent as is applied under our criminal
.
statutes to a criminal defend-ant Thus Smith's counsel
contends that the prosecutor acted knowingly if he was aware
of his conduct or that the circumstances existed, and that he
a c t e d knowingly w i t h r e s p e c t t o t h e r e s u l t o f h i s c o n d u c t i f

h e was a w a r e t h a t it was h i g h l y p r o b a b l e t h a t s u c h a r e s u l t

would be caused by h i s conduct. Further, the prosecutor,

Smith's counsel contends, acted purposely with r e s p e c t t o t h e

resulting mistrial, i f it was h i s c o n s c i o u s o b j e c t t o e n g a g e

i n t h e conduct o r t o cause t h e result. S e c t i o n 45-2-101,

MCA. We have approved of those tests before as to the

meaning of "knowingly" and "purposely," State v. Coleman

(19781, 177 Mont. 1, 5 7 9 P.2d 732. T h e r e seems l i t t l e r e a s o n

why the same test should n o t apply t o t h e conduct o f the

p r o s e c u t o r i n b r i n g i n g about a defense motion f o r m i s t r i a l .

I t i s my o p i n i o n t h a t i n c a s e s s u c h a s p r e s e n t e d h e r e on

the issue of double jeopardy, that we should adopt the

s t a n d a r d s o f c o n d u c t t a k e n and a p p r o v e d by t h e supreme c o u r t s

of Oregon and A r i z o n a and a p p l y t h o s e s t a n d a r d s u n d e r A r t .

11, § 2 5 , 1-972 Mont. C o n s t . a s s t a t e policy. Such s t a n d a r d s

would r e q u i r e f u r t h e r d e t e r m i n a t i o n by a fact finder a s t o

w h e t h e r t h e p r o s e c u t o r h e r e a c t e d p u r p o s e l y and knowingly i n

eliciting the improper testimony. I have expressed my

t h o u g h t s on d o u b l e j e o p a r d y a t l e n g t h i n t h i s d i s s e n t b e c a u s e

t h e U. S. Supreme C o u r t i n Oregon v . Kennedy, supra, found a

safeguard t o defendants i n double jeopardy questions i n t h e

availability of a review in the federal courts s y s t e m on

habeas corpus. T h e r e h a s n o t been a-n a d e q u a t e d i s p o s i t i o n o f

t h e double jeopardy q u e s t i o n i n t h i s i n s t a n c e e i t h e r under

our issuance of a writ of supervisory control or by the

6etermina.tion of t h i s appeal. I n my o p i n i o n t h e S t a t e was

~ i e g l i g e n t l yi n d i f f e r e n t t o t h e r e s u l t o f i t s conduct i n t h e

first trial and I would dismiss on grounds of double

jeopardy.
 There are additional. grounds on which I would reverse
the results in this case. Each is an example of overreaching
by the State. Thus I would reverse for errors in adding Jack
Wehrenherg as a witness on April 23, 1984, for failure to
strike the testimony of Bill Newhouse, for failure to grant a
change of venue, for admitting the statements attributed to
Smith by Arne Sand but especially for instructional error
which I will now discuss.
The District Court failed tc give instructions vital to
the defense when the cause was submitted to the jury, the
court taking the position that the jury had been instructed
in the preliminary instructions, and the jury would take the
written instructions with them to the jury room.
The issue is best framed by the counsel for Smith:
The State's Proposed Instructi-on No. 11 was an
instruction as to the definition of reasonable
doubt. Counsel for the defendant did not object to
the giving of this instruction. The St.atels
Proposed Instruction No. 3 was an instruction
directing the jury to not act upon sympathies or
prejudices. Counsel for the Defendant did not
object to the giving of this instruction. The
State's Proposed Instruction No. 12 was an
instruction directing the jury that a Defendant
could not be convicted by conjecture or
probability. Counsel for the Defendant did not
object to the giving of this instruction. Prior to
closing arguments, certain instructions were then
read to the jury. In chambers, counsel for the
Defendant then objected to the Court's failure to
give State's Proposed Instruction Nos. 11, 3, and
12. The Court responded that the three proposed
instructions were covered in the preliminary
instructions given to the jury at the beginning of
trial. Although the preliminary instructions were
sent to the jury room, they were not read at the
close of the trial. The question now becomes
whether it was error to fail to give the State's
Proposed Instruction Nos. 11, 3, and 12 or to read
their equivalent from the preliminary instructions.
The majority opinion is egregiously in error in skipping
over this vital issue.
 A few years ago, we adopted, with a good deal of press
hoopla, the American Bar Association Standards for Criminal

Justice. Standard 15-3.6 (e) provides:
Before the talcing of evidence, the court may give
preliminary instructions to the jury deemed
appropriate for their guidance in hearing the case.
After the arguments are completed, the court should
give the jury all necessary instructions.
The commentary provided with the Standards indicates the
necessity for repeating some of the preliminary instructions:
Even if certain instructions are given after the
jury is sworn, it will nonetheless be necessary for
the jury to be instructed before retiring for
deliberations. The instructions given at this time
will include at least some of the instructions
given when the trial opened. The second sentence
of paragraph (e) provides for these instructions to
be given after final arguments.
(The Standard as adopted by us refers to instructions after
arguments although that is not the procedure in our state
courts. lJnder our practice, instructions are given to the
jury before final arguments. Section 46-16-401 (6), MCA. )
An identical situation was presented to the Arizona
Cou-rt of Appeals in State of Arizona v. Marquez (Ariz.App.
19831, 660 P.2d 1243, 1249. There the Arizona Court
reversed, saying:
Since the burden of proof instruction was vital to
a.ppellantls defense, and since this error was
called to the attention of the trial judge before
the case was given to the jury, we hold that the
court committed reversible error requirin.9 a. new
trial.
In order that there be no further confusion, we
hold that the preliminary instruction of the jury,
authorized by Rule 18.6 (c) , Rules of Criminal
Procedure, is for the purpose of preparing the jury
for the trial and constitutes an orientation
process by which the jury is made to understand its
d-uties and responsibilities. Where elementary
legal principles that will govern the proceedj-ngs
are qiven to the jury as part of the orientation,
- -
the -trial judge must ;epeat all such legal
principles in his charge to the jury, where such
legal -principles include matters of law vital to
the rights of the defendant. (Emphasis added. )
660 P.2d 1249.

We adopted the American Bar Association Standards for
Criminal Justice with a good deal of fanfare, and for good
reason. Those Standards were the result of years of work to
which judges, defense and prosecuting lawyers contributed
mightily. The Standards represent the hest thought of
American jurisprudence with respect to proper procedure in
criminal cases. Although we adopted those standards, we do
not give them even lip service in this case.
I find further reversible error in the failure of the
District Court to give defendant's proposed instruction no.
1.5, which would have told the jury how to regard evidence
which is susceptible of two instructions or interpretations.
Since this case depended so largely on circumstantial
evidence, this particular jury instruction was vital to the
defense and should have been given. See People v. Yrigoyen
(Cal. 1 9 5 5 ) , 286 P.2d 1.

Justice