No. 87-181
I N THE SUPREME COURT OF THE STATE OF M N A A
O T N
1988
STATE OF MONTANA,
P l a i n t i f f and Respondent,
-vs-
DONALD ALLEN K I N N E Y , JR.,
D e f e n d a n t and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court o f t h e Fourth J u d i c i a l D i s t r i c t ,
I n and f0.r t h e County o f M i s s o u l a ,
The H o n o r a b l e D o u g l a s H a r k i n , J u d g e p r e s i d i n g .
COUNSEL OF RECORD:
For Appellant:
J . D i r k B e c c a r i , M i s s o u l a , Montana
F o r Respondent :
Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
John P a u l s o n , A s s t . A t t y . G e n e r a l , Helena
R o b e r t Deschamps, 111, C o u n t y A t t o r n e y , M i s s o u l a ,
Montana; B e t t y T. Wing, D e p u t y C o u n t y A t t y . , M i s s o u l a
S u b m i t t e d on B r i e f s : Dec. 31, 1987
Decided: February 10, 1988
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Defendant/appellant Donald A. Kinney (Kinney) appeals
his conviction by jury and judgment by the Fourth Judicial
District Court, Missoula County, on the offense of drivi-ng
under the influence (DUI) pursuant to S 61-8-401, MCA et seq.
Kinney claims he was unfairly prejudiced by the State's
introduction into evidence of prior convictions of DUI. We
affirm.
The only issue we have before us is whether the
District Court erred in allowing the State to introduce
evidence of Kinney's prior convictions for DUI.
We initially note that appellant has included only a
partial transcript on this appeal. There is no notice in the
file as required pursuant to Rule 9(b), M.R.App.P. We are
limited on the facts in this review because of lack of
information concerning the circumstances of the arrest.
Further, the partial transcript causes problems in
determining the issue at bar, admissibility of the prior
convictions, due to a lack of the District Court's
substantive rulings.
According to the information filed February 20, 1986,
Kinney was charged with three counts. Count I charged Kinney
with the offense of DUI, third or subsequent offense, a high
misdemeanor under 5 61-8-401, MCA; Count I1 charged him with
operating a motor vehicle with improper license plates
pursuant to S 61-3-301, MCA; and Count I11 charged Kinney
with operating a motor vehicle with a revoked driver's
license under § 61-5-212, MCA.
The affidavit and motion for leave to file information
stated that Missoula County Deputy Steve Peterson stopped
Kinney for speeding on January 25, 1986. Peterson smelled
alcohol on Kinney's breath and requested performance of a
number of field sobriety tests which Kinney failed. Kinney
was arrested and taken to the police department for
processing. He refused a blood alcohol test. When asked if
he had been drinking, Kinney replied that he had. When asked
if he was "under the influence," he stated, "naturally."
At an April 3, 1986 omnibus hearing, the State gave
Kinney notice that it intended to introduce evidence of
previous convictions pursuant to Rule 404, M.R.Evid. A
checklist at the omnibus hearing required the State to file
formal notice as required under State v. Just (1979), 184
Mont. 262, 602 P.2d 957, by ~ p r i l18, 1986. This notice was
never filed and on November 20, 1986, the District Court
granted Kinney a motion in limine disallowing the State from
introducing any evidence of the prior convictions.
Kinney originally entered a plea of not guilty to all
three counts but changed the plea to guilty on all counts
except driving under the influence on November 20, 1986.
Trial occurred November 20 and 21, 1986. At trial, the
following testimony was elicited from Kinney:
[On direct examination by defense
counsel] :
Q. Are you familiar with the term "under
the influence," Mr. Kinney?
A. I am now, yes.
Q. I'm going to ask you the critical
question. Were you under the influence
of alcohol at the time you were arrested?
A. I don't believe so.
0. You're quite sure?
A. Yes.
Q. Do you recall when I was talking to
the jury earlier and I explained the
difference between "under the influence"
or "having one drink and driving under
the inf1-uence?"
A. Yes.
Q. When the officer asked you if you
were under the influence, were you or
were you not assuming that "under the
influence" meant just having a sip of
beer?
[Prosecutor]: Objection, leading the
witness, Your Honor.
[The court]: Sustained. Rephrase your
question.
Q. [Defense Counsel] : Why did you tell
the officer you were under the influence,
when obviously from your testimony, you
did not have very many beers?
A. Well, I didn't understand what "under
the influence" meant. I thought even if
you took like a teaspoon full of alcohol,
you'd be under the influence since you
had the alcohol in your system.
[On cross-examinati-on, Kinney testified
as follows] :
Q. [Prosecutor] I guess I will rephrase
may question and ask you to answer mv
question. My question is you just
testified you do not understand the term,
"under the influence." My question to
you is, is that the reason why you
answered the officer in response to his
question, "Naturally?"
A. Yes.
[Defense Counsel] : Your Honor, I think
he should be allowed to explain that
question more. The first time [the
prosecutor] asked that he had begun to
answer by explanation.
[The court] : Did you have more of an
answer you wanted to give?
A. Yes. The reason I answered,
"Naturally," is because the previous
question was, "Had I been drinking?" And
the next question was, "Was I under the
influence?" And I didn't understand what
the term meant, so I said, "Naturally."
Q. [Prosecutor]: Mr. Kinney , your
testimony has been that you don't
understand the meaning of "under the
influence of alcohol," is that correct?
A. I didn't at the time, I do now.
Q. Mr. Kinney, isn't it also true that
you have two prior convictions before
this incident for driving under the
influence of alcohol?
A. Yes.
[No objection was made to the question
and there was no motion to strike the
answer. 1
The general rule is that failure to timely object or
make a motion to strike does not preserve the record for
claiming error on appeal. Rule 103, M.R.Evid., states that
"[elrror may not be predicated upon a ruling which admits
evidence unless ... a timely objection or motion to strike
appears of record... " See, Clark v. Norris (Mont. 1987),
734 P.2d 182, 188, 44 St.Rep. 444, 450; Poindexter & Orr etc.
Co. v. Oregon R.R. Co. (1905), 33 Mont. 338, 83 P. 886.
As evidenced in the partial transcript, however, the
District Court, on the following day of trial, let defense
counsel object on the record to the questioning regarding the
prior convictions. Due to the ruling of the District Court
we will consider the evidence as if the objection had been
timely made.
At the close of the trial, the District Court properly
instructed the jury on prior convictions:
The State has offered evidence that the
defendant at another time engaged in
other crimes. That evidence was not
admitted to prove the character of the
defendant in order to show he acted in
conformity therewith. The only purpose
of admitting that evidence was to show
knowledge or absence of mistake or
accident. You may not use that evidence
for any other purpose.
Kinney claims the District Court erred when it allowed
questioning regarding the prior DUI conviction evidence
because it was inadmissible under Rule 609, M.R.Evid., and
the State violated the notice requirements of State v. Just,
supra. Kinney claims his character was degraded in
contravention of S 26-2-302, MCA, when the prosecutor asked
him about his prior DUI convictions. This statute is
cross-referenced with Rule 609, M.R.Evid., which states:
"For purpose of attacking the credibility of a witness,
evidence that he has been convicted of a crime is not
admissible."
Rule 404(b), M.R.Evid., also deals with the question of
when prior conviction evidence is admissible. It states:
Evidence of other crimes, wrongs, or acts
is not admissible to prove the character
of a person in order to show that he
acted in conformity therewith. It may,
however, be admissible for other
purposes, such as proof of motive,
opportunity, intent, preparation, plan,
knowledge, identity, or absencg of
mistake or accident. (Emphasis added.)
Prior conviction evidence is generally admissible in
two ways. The first, requires compliance with the standards
set out in State v. Just, supra. Alternatively, however,
when the defendant puts before the jury the issue of his
character or misguides the jury by statements of his good
moral attributes, he "opens the door" and the prosecution may
introduce evidence of prior crimes, wrongs or acts.
We have stated that the trial court has wide discretion
in determining whether previous conviction evidence should be
allowed. Absent an abuse of discretion, the Court will.. not
overturn a District Court's weighing of the danger of
prejudice to the defendant against the probative value of the
prior conviction evidence. Rule 403, M.R.Evid.; State v.
Pease (Mont. 1986), 724 P.2d 153, 162, 43 St.Rep 1417, 1428;
State v. Austad (1982), 197 Mont. 70, 83, 641 P.2d 1373,
1380.
In Austad, supra, we affirmed the District Court when
it allowed evidence of a previous conviction even though the
strict procedure of Just was not followed. The defendant in
Austad, stated that he would not have committed the crime of
burglary because it was not in his nature. The prosecution
then presented evidence that the defendant had indeed
previously been convicted of burglary. We stated that
despite the defendant's answer being elicited from the State,
the pertinent trait of the defendant's character was thrust
before the jury and therefore the defendant's statement came
" [w]ithin the exception of Rule 404 (a)(1), and open [edl the
door for the State to present rebuttal evidence of a
pertinent trait of the character of the accused. " Austad,
641 P.2d at 1383.
The defendant in Austad primarily relied on Rule 609,
M.R.Evid., just as Kinney is in this case. Under the facts
of this case, Rule 404(b) is also applicable.
Here, the evidence of defendant's prior
felony conviction was admitted to prove
not that defendant committed the crimes
of which he was charged, but that.
defendant lied under oath.
Austad, 641 P.2d at 1384.
In the instant case, the evidence was not presented by
the State to prove that, because Kinney had previously
committed the offense of DUI that he would commit it again,
but instead the previous crime evidence was allowed to prove
that he had knowledge of what "under the influence" meant.
As we said in Austad, this type of case falls outside of Rule
609 and the strict procedural requirements of Just, supra,
and its progeny of case law.
Here, on cross-examination, defendant
answered a question with an unnecessary,
self-serving statement which he knew to
be untrue, intended to place him in a
better light with the jury.
Austad, 641 P.2d at 1384.
We stated that Austad's testimony "open[ed] the door"
for the state to present rebuttal evidence. The testimony in
this case shows Kinney also made statements which were
self-serving and placed him in a better light with the jury
on direct examination. Specifically, when Kinney said he was
not familiar with the term "under the influence" at the time
of the arrest and did not believe he was under the influence
when he was arrested, he opened the door to evidence of the
previous DUI convictions.
Once the issue is presented to the jury by the
defendant, the prosecution may introduce evidence of prior
crimes. In State v. Wilson (Mont. 1981), 631 P.2d 1273,
1277, 38 St.Rep. 1040, 1044, we stated:
If [a defendant in a criminal case] takes
the stand and testifies in his own
defense, his credibility may be impeached
and his testimony assailed like that of
any other witness, and the breadth of his
waiver is determined by the scope of
relevant cross-examination. "[Hle has nc
right to set forth to the jury all the
facts which tend in his favor without
laying himself open to a
cross-examination upon those facts."
.. . Brown v. United States (1958), 356
U.S. 148, 154-155, 78 S.Ct. 622, 626, 2
L.Ed.2d 589, 596-597.
Kinney's statements fall precisely under the exception
stated in Rule 404(b) that prior crimes can be presented to
prove defendant's knowledge. Having been convicted of DUI on
a number of prior occasions, Kinney undoubtedly had knowledge
of what "under the influence" encompassed. In his testimony,
Kinney attempted to misguide the i u r y by claiming he did not
understand the term.
When a defendant understands the intricacy of proving a
legal term of art and attempts through his own testimony to
subvert proof of this element, he has clearly shown
knowledge. There is no question that Kinney's knowledge was
relevant in this case and fell into the category of
exceptions stated in 404 (b).
Under the facts of this case, we hold that the District
Court did not abuse its discretion by allowing evidence of
the prior DUI convictions.
Affirmed.
We concur: /
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