State v. Sadowski

No. 90-065

IN THE SUPREME COURT OF THE STATE OF MONTANA
1991

THE STATE OF MONTANA ._. L

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Plaintiff and Respondent,
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PHILIP SADOWSKI, .- i ,
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Defendant and Appellant.
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APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Philip F. Walsh; Lineberger & Walsh; Bozeman,
Montana
Stephen D. Roberts, Bozeman, Montana
For Respondent:
Marc Racicot, Attorney General, Helena, Montana
Patti Powell, Asst. Atty. General, Helena, Montana
A. Michael Salvagni, County Attorney, Bozeman,
Montana

Submitted on Briefs: October 26, 1990
Decided: January 28, 1991
Filed:
Justice R. C. McDonough delivered the Opinion of the Court.

The defendant Philip Sadowski appeals the judgment and verdict
of the Montana Eighteenth Judicial District Court, Gallatin County
convicting him of the offense of deliberate homicide for the
shooting of Robert Hare, pursuant to 5 45-5-102, MCA. The Court
sentenced Sadowski to forty years in the Montana State Prison for
the deliberate homicide conviction plus ten years consecutively
for the use of a weapon and declared the defendant ineligible for
parole for 17 years. We affirm.
Sadowski presents three issues for review on this appeal:
1) Did the District Court err in denying the defendant's
motion in limine and admitting over the defendant's continuing
objection evidence of uncharged prior misconduct by the defendant?
2) Was it plain reversible error for the prosecutor to
allegedly comment upon and emphasize, as well as cross-examine the
defendant concerning the defendant's post-arrest silence after the
defendant had received his Miranda warnings?
3) Was it reversible error for the investigating police
officers not to take into evidence allegedly crucial items that may
have been weapons used by the victim that would support the
defendant's affirmative defense of justifiable use of force?
The facts in this case, except those facts immediately
surrounding the shooting of Robert Hare, are largely undisputed.
The defendant Philip Sadowski, operated a furniture restoration and
repair business called the Furniture Doctor in Gallatin County near

2
Four Corners, approximately eight miles west of Bozeman. The
business was located in a workshop which connected with his
residence. On April 14, 1989, Sadowski and his cousin, Sid
Warburton, who was visiting from California, delivered an antique
backbar to some customers in Pray, Montana. Sadowski and Warburton
returned to Four Corners and had dinner at the Korner Restaurant
and then proceeded to the Korner Club Bar at about 8 p.m. where
they played pool and drank beer until closing. During this time,
Sadowski met Frank "Hawkn McKinnis and his girlfriend Lynn Bell.
sadowski did not know either ~ c ~ i n n i s Bell prior to striking up
or
a conversation with them at the bar. Mc~innisand sadowski talked
about woodworking. ~cKinnisstated that he didn't have access to
good woodworking tools and Sadowski told him he had a full
woodworking shop, and that they could stop by after closing to have
a drink and look around Sadowskits shop.
Sadowski, Warburton, McKinnis, and Bell arrived at Sadowskits
house at approximately 2:15 a.m. The deceased, Robert Hare,
arrived by himself soon afterward. Sadowski had not met Hare prior
to Hare knocking on the door and walking into the Furniture Doctor
building. However, Bell introduced Hare as a friend, and Sadowski
allowed him in.
Once in the shop, the five people drank and talked.
Admittedly, everyone present was intoxicated. Sadowski and
McKinnis conversed separately from the others as their attentions
were focused primarily on woodworking and the designs that McKinnis
was cutting from pieces of wood with Sadowskivs band saw. Bell,
Warburton, and Hare talked with one another on the other side of
the shop.
At about 3: 30 a.m. McKinnis asked Sadowski if he could see his
stock of wood, which was located just outside the main room of the
shop. While Sadowski and McKinnis looked at the wood, in the other
room they heard Sadowski's cousin Warburton yelling, IvTheyvre
hurting me!" Sadowski and McKinnis then went back into the shop
and saw Warburton with Hare and Bell near the door to the tool
room. Sadowski testified that he thought this incident was odd
because he had never seen his cousin behave that way, but he did
nothing. He testified that he was concerned but he passed the
incident off, and returned to the other side of the shop when
McKinnis called him back to where he was working.
According to Sadowski's testimony, McKinnis later asked
Sadowski to go into his living quarters to get more beer. While
Sadowski was in the living quarters, getting the beer, and was out
of sight but within hearing distance of the people in the workshop
area, he heard his cousin complain of being hurt again. Sadowski
testified that he became concerned at this time that perhaps a
robbery would take place by these strangers he had invited into his
home. He testified that he felt that he needed to be prepared
should something happen, so he went into his bedroom, got his
revolver and placed it in his belt in the back of his pants.
At this point the testimony is in dispute. Sadowski testified
that upon returning to the shop he saw his cousin and Lynn Bell
kissing, announce that they were going to get some beer, and walk
out of the shop into the apartment area. Sadowski testified that
because McKinnis and Bell appeared to be a couple and McKinnis was
turned at the band saw and hadn't seen what happened, Sadowski
turned to Rob Hare and asked, "What's going on out there?"
Sadowski testified that upon asking this, Hare became very
animated, started swinging his hand around, and said "Well, you
know what's going on out there. She's sort of jerking him around
and this is how we get our power." Defendant testified that he was
very frightened at Rob Hare's comment, wondering if they were
planning a robbery or perhaps belonged to a cult. Sadowski
testified that when he asked Rob Hare "What the hell do you mean
by that?" Hare allegedly responded, llWell,that's just what we
do. "
Sadowski then testified that he pulled his gun out, held it
in front of him without pointing it and said to Hare, "Look, I
don't know what the hell's going on at this point, but I want you
to. .. .I1 and that he was going to tell everyone to leave.
Hare allegedly replied I1Oh, you can't stop me with that,''
meaning Sadowski's gun. Sadowski claimed to have backed up, asking
Hare to not come any closer, but Hare allegedly continued to
approach him yelling, ''You can't stop me! Sadowski testified that
he got no response from McKinnis when he asked him to stop Hare.
Hare allegedly kept approaching Sadowski, raised his right hand up,
had his left hand out in front of him, crouched, and moved quickly,
looking as if he were going to hurl himself at Sadowski. Sadowski
testified that when he felt he could retreat no more and that Hare
would be upon him, he raised his gun up, aimed it at Hare's chest
and shot him.
Hawk McKinnis1sversion of the shooting differs substantially.
He testified that he turned off the band saw and turned around and
saw Hare standing by the entrance to the shop ten to twelve feet
from Sadowski. He testified that he heard defendant and Rob Hare
in a low, regular, conversation, after which he heard defendant
tell Rob Hare he was "tired of his bullshit" and then saw Sadowski
level a pistol at and shoot Hare. He testified that Hare was
standing in an upright position when shot. McKinnis testified that
Sadowski then pointed the pistol at him and he told Sadowski that
if he was going to shoot him, "he should do a good job of it or
call the police.'' Sadowski telephoned the police and requested an
ambulance immediately after the shooting. When officers arrived
at the scene, Sadowski identified himself as the one who shot Hare,
and officers then placed him under arrest and read him his Miranda
rights. Rob Hare was taken to the hospital where he was pronounced
dead.
At trial, sadowski acknowledged that he had purposely or
knowingly caused the death of Rob Hare and asserted as his sole
defense that he was justified in shooting Hare because Hare was
attacking him. Prior to trial, the state gave notice of its
intention to llintroduceat trial evidence of other acts to show
intent, knowledge, opportunity and absence of mistake or accident"
pursuant to State v. Just (1979), 184 Mont. 262, 602 P.2d 957.
The trial court denied Sadowskitsmotion in limine on prior acts
evidence.
The evidence presented by both sides in the four day trial
was extensive. Forensic scientists testified that the bullet
traveled downward through Rob Hare's body at a thirty degree angle
and that this was inconsistent with the victim being in an upright
position at the time of the shooting. Hawk McKinnis8 credibility
was placed at issue throughout the trial, and as the only
eyewitness, his testimony contradicted Sadowski's. Evidence of the
victim's character for aggressiveness while intoxicated was
introduced by the defense and rebutted with evidence by the
prosecution. ~hirty-onewitnesses in all testified. Sadowski's
cousin, id Warburton, although subpoenaed and listed as a witness
by both the defense and the prosecution, did not testify. The
jurors were allowed a view of the crime scene. After deliberation,
the jury found Sadowski guilty of the offense of deliberate
homicide, to which Sadowski now appeals. More specific facts will
be developed in the discussion of Sadowskits issues on appeal as
needed.
I.

As his first issue, Sadowski alleges that the District Court
erred in admitting evidence of a past incident of misconduct where
Sadowski admittedly pointed a gun at a deputy sheriff two years and
eight months prior to the homicide. Our standard of review
relating to such evidentiary rulings is to determine whether in
admitting the evidence the District Court abused its discretion.
Steer, Inc. v. Dept. of Revenue (Mont. 1990), - P.2d -, I

47 St.Rep. 2199, 2200. The District Court has broad discretion to
determine whether or not evidence is relevant. Absent a showing
that the District Court has abused its discretion, this Court will
not overturn the District Court's determination of relevancy.
State v. Oman (1985), 218 Mont. 260, 264, 707 P.2d 1117, 1119-
1120. In the prior incident Sadowski had been having marital
problems and phoned the sheriff's office and informed them that he
was going to shoot himself. Deputy Campbell came to Sadowski's
residence and Sadowski informed him that his marriage was breaking
up and that was the cause of his distress. Deputy Campbell talked
with Sadowski for approximately two and a half hours until
Sadowski's wife came home. As Deputy Campbell talked to her,
Sadowski got up from the couch and pointed a gun at him, allegedly
stating that he now had control over the situation rather than
Campbell. Deputy Campbell ducked behind the bookcase and crawled
backwards out of the house. He testified that once outside he
looked in the window and observed Sadowski first point the gun at
his own head and then give the gun to his wife, who came out and
gave the gun to Campbell. Sadowski was then arrested and placed
in protective custody but was not charged with a crime.
 After receiving the State's Just notice the District Court
ruled on the defendant's motion in limine to bar admission of this
incident:
the central issue to be decided in this matter is whether
the Defendant lawfully used a firearm under a stressful
situation, and the exceptions to the general rule which
prohibit evidence of other acts of misconduct would allow
the State to introduce such testimony to show intent or
motive and to explain away accident or mistake. So it
is the Court's ruling that an allegedly unlawful use of
a firearm three years prior to this is relevant; the jury
should hear about it to determine the manner in which
the Defendant acted in the present condition.
The "exceptions1'to the general rule that evidence of other crimes,
wrongs or acts is inadmissible to prove a defendant's character
referred to in the court's ruling are found at Rule 404(b),
M.R.Evid. which provides:
Other crimes, wrongs, acts. 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 absence of
mistake or accident.
As with its federal counterpart, the Montana rule adopts an
inclusionary rather than an exclusionary approach, that is, use of
the word "may1'indicates that the second sentence actually lists
theories of relevant examples rather than exceptions. State v.
Johns (Or. 1986), 725 P.2d 312, 319-320.
In addition to the requirements of Rule 404(b), other acts
evidence should meet the procedural as well as substantive
requirements set out by this Court in State v. Jensen (1969), 153
Mont. 233, 455 P.2d 631; and State v. Just (1979), 184 Mont. 262,
602 P.2d 957. The test of admissibility set forth in these cases
is
(1) similarity of crimes or acts;
(2) nearness in time, and
(3) tendency to establish a common scheme, plan, or
system;
(4) the probative value of the evidence is not
substantially outweighed by the prejudice to the
defendant. (Emphasis in original.)
Just
I 602 P.2d at 961. We recently summarized the current state
of the Just requirements in State v. Medina (Mont. 1990), 798 P.2d

In considering the first prong of the test, we have
previously held that "prior acts need not be identical
to the offense committed but be merely of 'sufficient
similarity1"in order to comply with this first criteria.
State v. Eiler, 762 P.2d at 216, quoting State v. Tecca,
220 Mont. 68, 714 P.2d 136 (1986). ...

With regard to nearness in time, each case must be
examined in light of its unique set of facts. See State
v. Hansen, 187 Mont. 91, 608 P.2d 1083 (1980), where we
allowed two and one-half years; State v. Stroud, 210
Mont. 58, 683 P.2d 459 (1984), where we allowed three and
one-half years; and State v. T.W., 220 Mont. 280, 715
P.2d 428 (1986), where we allowed four years when the
facts indicated that defendant did not have a prior
opportunity. ...

.
. . A common scheme, plan, or system is indicated
by other crimes evidence when, compared with the current
charge, the crimes possess a unique similarity which
supports a plan to carry out a scheme. Just, 602 P.2d
at961. ...
 Any evidence of other crimes will have prejudicial
implications on the defendant. Just, 602 P.2d at 961.
As a result this court adopted procedural safeguards to
decrease these prejudicial implications. Just, 602 P.2d
at 963-64. Although these procedural safeguards do
alleviate some of the prejudice to the defendant, they
still do not replace the courtts ultimate task of
weighing the probative value of the other crimes evidence
against its prejudicial effect.
Medina, 798 P.2d at 1035-1036. In State v. T.W. (1986), 220 Mont.
280, 715 P.2d 428, this Court held that failure to meet one element
of the Just formula was not enough to refuse admission of prior
acts. I1Admission of evidence cannot be denied solelv on the fact
that it was not too near in time to the incident in question.
Factors other than mere lack of time must be determined by the
circumstances of the case.I1 T.W., 715 P.2d at 431. Here, although
the crimes were not identical, they were like enough to meet the
Just similarity criteria as well as fall within the boundaries of
nearness in time. Furthermore, the trial court performed its
function of balancing the Just requirements as well as the
prejudice versus the probative value of the evidence and found that
the ttallegedly
unlawful use of a firearm three years prior to this
is relevant; the jury should hear about it to determine the manner
in which the defendant acted in the present ~ondition.~~
Our analysis of the admissibility of other crimes evidence
does not end with the fulfillment of the requirements of Just. The
State must also demonstrate that the evidence is logically relevant
towards one of the Rule 404(b) examples or some other fact in issue
and not merely introduced as proof of a character defect or
propensity of the defendant in order to show that he acted in
conformity therewith. Rule 404 (b), M.R. Evid. The trial judge
ruled that the evidence was admissible to show intent or motive and
to explain away accident or mistake. To be admissible as relevant
towards motive, the commission of the first crime or act should
give rise to a motive or reason for the defendant to commit the
second crime. See e.q. State v. Simpson (1939), 109 Mont. 198, 95
P.2d 761. Thus, while the District Court mentioned the motive
exception in its ruling, the applicable Rule 404(b) example here
is intent. In this regard, both the State and the defendant urge
us to examine the facts of this case in light of the Oregon Supreme
Court's analysis in State v. Johns, supra, 725 P.2d 312.
In Johns the Court noted that intent or state of mind is often
the most difficult element of a crime to prove. Johns, 725 P.2d
at 321. The Johns court also noted that intent and absence of
mistake or accident were really the same issue under the facts of
that case. Under the facts of this case, we note that the issue
of intent is really synonymous with absence of a justification for
the use of force by the defendant, i.e., whether the defendant was
actually the aggressor in this case.
The Johns court analyzed that case according to Wigmore's
logical relevance theory of admissibility for prior crime evidence
involving the issue of mens rea. See 2 Wigmore, Evidence in Trials
at Common Law, 5 302 (rev.ed. 1979). Wigmore's theory is based on
the doctrine of chances; it does not ask the trier of fact to infer
the defendant's state of mind from the defendant's subjective
character; rather, it asks the trier to make an intermediate
inference of objective improbability under the doctrine of chances
and then an ultimate inference of intent based on the improbability
of the conduct. Johns, 725 P.2d at 323, citing Imwinklereid,
Uncharged Misconduct Evidence 8, 5 5.05; see also Roth,
Understandinq Admissibility of Prior Bad Acts: a Diaqrammatic
Approach, 9 Pepperdine L.Rev. 297 (1982). Imwinklereid explains
Wigmore's theory:
". . . The doctrine teaches us that the more often the
defendant performs the actus reus, the smaller is the
likelihood that the defendant acted with an innocent
state of mind. The recurrence or repetition of the act
increases the likelihood of a mens rea or mind at fault.
In isolation, it might be plausible that the defendant
acted accidentally or innocently; a single act could
easily be explained on that basis. However, in the
context of other misdeeds, the defendant's act takes on
an entirely different light. The fortuitous coincidence
becomes too abnormal, bizarre, implausible, unusual, or
objectively improbable to be believed. The coincidence
becomes telling evidence of mens rea.
Imwinklereid, supra, at 8, !i
j 5.05.
Some commentators have concluded that under such a theory the
proponent must have evidence of more than one prior similar
instance of conduct. Johns, 725 P.2d at 324; see e.s. Note,
Admissibility of Evidence of Prior Crimes in Murder Trials, 25
1nd.L.J. 64, 68 n 23 (1949-50); Comment, The Admissibility of
Evidence of Extraneous Offenses in Texas Criminal Cases, 14 S.Tex.
L.J. 69, 96 (1973). Others, including Imwinkleried, assert that
in terms of logical relevance even a single similar act would
increase the likelihood that a defendant acted intentionally.
"So long as the defendant has performed the act 'oftener than
once,' the act has some logical relevance on the issue of intent."
Imwinklereid, supra, at 12, 5 5.06. "[Tlhe mere prior occurrence
of an act similar in its gross features--i.e., the same doer, and
the same sort of act, but not necessarily the same mode of acting
nor the same sufferer--may suffice for that purpose.'' Roth, supra,
at note 43, quoting 2J Wigmore, supra, at 251, 5 304.
We agree with the Johns court that no categorical statement
can be made one way or the other, rather such decisions must be
made on a case by case basis. Johns, 725 P.2d at 324. "A simple
unremarkable single instance of prior conduct probably will not
qualify, but a complex act requiring several steps, particularly
premeditated, may well qualify." Johns, 725 P.2d at 324.
Thus, the linchpin for determining whether a single instance
of prior conduct is sufficient to prove intent is relevancy based
on similarity. Here, because the defendant admits that he
purposely and knowingly killed Rob Hare, the prior uncharged
misconduct actually is relevant towards the reasonableness of
Sadowski's claim of self defense, i.e., whether he acted with
criminal intent or in self defense. We conclude that the prior act
is sufficiently similar to be admissible on this issue. Both
instances involved the use of alcohol and firearms. Both instances
can be characterized as stressful; one involved marital discord and
attempted suicide, the other involved the defendant's subjective
belief of a possible robbery. Deputy Campbell testified that when
Sadowski pointed the gun at him in the prior incident, he said
something to the effect that "I no longer had control ... [h]e
meant that he had control now, not me." Phil Sadowski's own
testimony indicates that upon becoming concerned about Rob Hare's
alleged bizarre comments, he pulled the gun out before he asked
everyone to leave. In both instances, the defendant while
intoxicated pointed a firearm at an invitee in his home allegedly
to gain control of what he believed to be an out-of-control
situation in his own home. The prior act is admissible as
relevant towards Sadowski's intent and the justification for using
force to defend himself.
The District Court did not abuse its discretion.

As his second issue, Sadowski argues that the prosecutor
improperly commented upon and emphasized, as well as cross-
examined the defendant concerning, the defendant's post-arrest,
post-Miranda-warning silence in violation of Doyle v. Ohio (1976),
426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91. In Doyle, the United
States Supreme Court held that use of a defendant's silence
maintained after Miranda warnings was fundamentally unfair because
Miranda warnings inform a person of his right to remain silent and
assure him, at least implicitly, that his silence will not be used
against him. Anderson v. Charles (1980), 447 U.S. 404, 407-408,
100 S.Ct. 2180, 2182, 65 L.Ed.2d 222, 226; Doyle, 426 U.S. at 618-
619, 96 S.Ct. at 2245, 49 L.Ed.2d at 97-98. For purposes of
identification each violation alleged in this case will be
numbered.
1. The State on redirect questioned the arresting officer
Rash as follows:
Q. Deputy Rash, from the time that you arrived at the
building until the Defendant was taken away from the
building, how much time elapsed? Can you tell me?
A. I would say I arrived 4:07 a.m. and Lieutenant
Pronovost arrived at 4:29 a.m., possibly 20 minutes.
Q. Now during that time, other than saying "1 shot him,
did the defendant say anything else?
A. Not that I heard.
(Transcript at 179.)
2. The State later questioned Officer Adams who transported
defendant from the Furniture Doctor to the Law and Justice Center:

Q. Did anything occur from the Furniture Doctor building
when you transported him to the Law and Justice Center
here? Did anything occur in your car?
A. No.
Q. Did the Defendant say anything to you?
A. While in the vehicle?
Q. Yes.
A. Not that I recall, no, he did not.
(Transcript at 478.)
3. During cross-examination of Sadowski by the State the
following colloquy took place:
 Q. Now, there at the building, at the shop when they
were there, you made the statement that, I1I shot him,"
right?
A. Yes.
Q. What were the other officers doing while you were
there? Did you see them?
A. There were a bunch of people. There were a bunch of
people doing all kinds of things.
Q. Did you ever say to anybody, "That man had a knife
in his hand and its over there, look for itgt?
A. No, I didn't.
Q. Why not?
A. It didnlt occur to me.
(Transcript at 673.)
4. Later in cross-examination, the State asked Sadowski the
following questions:
Q. Now, you rode from your shop in to the Law and
Justice Center, right?
A. Yes.

Q. So you rode with him from there to here, what did you
tell him?
A. We were just having some conversation.
Q. In fact the first time you mentioned anything about
a knife, or something was some silver thing, was in this
building when you were talking to Bryan Adams downstairs,
right?
A. I'm not sure of that.
Q. Well, did you ever tell anybody before that?
A. I don't think so.
 Q. Why did it occur to you that you should tell him when
you were on the second floor down here?
A. I 'm not sure. I don't remember the circumstances.

Q. The truth is that you told Bryan Adams that because
you knew that you were in a whole lot of trouble and you
had better put a weapon in Rob Hare's hands; is that
right?
A. No, that's not right.
Q. Because you had training in self-defense and you knew
when deadly force could be used; isn't that right.
A. I didn't know from a legal standpoint when it could
be used. I know what common sense told me. ...
(Transcript 675-6.)
5. Sadowski argues that the State also commented on
Defendant's post-Miranda silence during the opening portion of the
State s final argument:
. . . You'll remember how officer Adams characterized
the defendant when he said he was looking down the
hall, and then he turned and looked at Officer Adams and
said, Itshoot to kill." That's the first time that
anybody heard about Rob Hare having any kind of a deadly
weapon ...
(Transcript at 864.)
6. Sadowski claims that this prejudice was compounded later
when the State argued in rebuttal:
The knife was fabricated. The shiny object was
fabricated in this building on the second floor down
here. . ..
...
He had every opportunity out there when the sheriff's
deputies arrived to talk about the weapon. What happened
here? "1 shot him1'. What would a reasonable person do?
"1 shot him because I had to because he had a shiny
object; he had a knife. He was attacking me. I shot
 him." ...
(Transcript at 915-916.)
Because Doyle is based on principles of fundamental fairness
that a defendanttssilence after receipt of governmental assurances
will not be used against him, the prohibition of Doyle does not
apply to pre-arrest silence before the Miranda warning is issued.
State v. Furlong (1984), 213 Mont. 251, 258, 690 P.2d 986, 989;
State v. Wilson (M0nt.1981)~ 631 P.2d 1273, 1277; Jenkins v.
Anderson (1980), 447 U.S. 231, 238-240, 100 S.Ct. 2124, 2129-2130,
65 L.Ed.2d 86, 94-96. And although use against a criminal
defendant of silence maintained after receipt of governmental
assurances of one's right to silence is barred by Doyle, this
directive does not apply to language that inquires into prior
inconsistent statements. Such comment makes no unfair use of
silence, because a defendant who voluntarily speaks after
receiving Miranda warnings has not been induced to remain silent.
State v. Wiman (1989), 236 Mont. 180, 187, 769 P.2d 1200, 1204,
citing Anderson v. Charles, supra, 447 U.S. at 408, 100 S.Ct. at
2182, 65 L.Ed.2d at 226. Here then the issue of improper comment
on silence can be divided into two parts. Silence before the
arrest and Miranda warning and silence after arrest and Miranda
warning. Alleged violations No. 3, the first quotation of
Sadowskits cross-examination, and 6, rebuttal to final argument,
refer to pre-arrest silence.
The State argues that the Defendant made four inconsistent
statements regarding the shooting: one to the dispatcher on the
telephone, one to the police when they arrived on the scene, and
the two to the police at the law and justice center, indicating
that the victim had a weapon. However, in this case we need not
determine whether these statements were inconsistent. These
questions and comments that Sadowski alleges constitute fatal error
are thinly spread throughout some 900 pages of transcript.
Furthermore, we note that the defendant never posed an objection
to any of the prosecutorts questions or comments.
Generally, the failure to object in a timely manner
constitutes a waiver of alleged error. Section 46-20-104, MCA;
State v. Wilkins (1987), 229 Mont. 78, 80, 746 P.2d 588, 589.
However, when substantial rights of a defendant as here are
involved, the lack of timely objection does not preclude us from
exercising our power of review to examine any error at the trial
court level. Section 46-20-701 (2), MCA; State v. Harris (1984),
209 Mont. 511, 517, 682 P.2d 159, 162; Rule 103(d), M.R.Evid. Our
review of the record in this case indicates that defense counsel
actually asked the first question alluding to Sadowskits silence
on cross-examination of Officer Rash, in a manner implying
innocence:
Q. Phil Sadowski, the entire time you were there, never
denied he did the shooting, did he?
A. No, sir, not that I can recall.
(Transcript p. 172) This opened the door for the prosecutorts
questioning of Officer Rash on redirect, quoted earlier and
numbered as excerpt 1, that Sadowski alleges was the beginning of
the State's allegedly repeated Dovle violations.
In State v. White (1982), 200 Mont. 123, 127-128, 650 P.2d
765, 767-768, we held that the defendant's post-Miranda, pretrial
silence is a proper subject of cross-examination where defendant
raises the issue of his earlier silence and proceeds to
characterize that silence as proof of innocence rather than as an
exercise of his Miranda rights. In White the defendant raised the
issue in his direct testimony, here it was first raised on cross-
examination of a State's witness, and then rebutted by the State
on redirect. Then later, the defense first focused on Sadowski's
post-Miranda silence on cross-examination of Sheriff Cutting:

Q. So Phil Sadowski never, at any spot from the time you
took him from the scene until the time you took him down
here to the station, all during the time of the
statement, never told you that he saw a knife in Rob
Hare's hand, did he?
A. No. That was asked, the question was asked by
Lieutenant Christie.
(Transcript p. 513.) In White we held that there was no violation
of Doyle where this issue was first raised by defendant as evidence
of guilt on direct examination. The same would apply to cross-
examination and later argument. These alleged violations No. 3,
4, 5 and 6, are subsequent in time to the above cross-examination

of Sheriff Cutting. Alleged violation No. 2 is not clear as to
purpose and appears to be an inquiry as to what happened and not
argumentative for the purpose of showing inconsistencies. To

arrive at a conclusion that Rash's redirect (1) and Adam's direct
(2) are violations of Doyle, is accomplished by conjecture when

viewed in context. We find there is no plain error or Doyle
violation when viewed in context, where the defendant first focuses
on the issue of his earlier silence in cross-examination of the
State's witnesses, fails to object to the State's reference to the
same silence for alleged improper purposes, and then for the first
time on appeal alleges that admission of such evidence constitutes
plain reversible error.
111.

ina ally, Sadowski contends that it was reversible error for
the investigating police officers not to take into evidence items
from the crime scene that may have been weapons used by the victim
that would support the defendant's affirmative defense of
justifiable use of force. The officers at the scene were not
immediately informed of the use of any type of weapon by the
deceased. Testimony of officers at the scene indicates that the
police did look for a possible weapon, but could find nothing in
close proximity to the body of the victim except a set of keys on
a table two or three feet away from and above the body, and an
apparently undisturbed chisel covered with dust approximately
fifteen feet from the body. Sadowski argues that the prejudice he
suffered due to the officers1 failure to obtain fingerprint
evidence of these and other potential weapons was compounded by the
prosecutor's comments on final argument of "where is the weapon?"
First, we note that the defense had a full opportunity to
cross-examine the officers concerning the reasons why they chose
not to fingerprint such items, as well as introduce objects that
it contended should have been fingerprinted. Moreover, it is well
settled that while a criminal defendant has a constitutional right
to obtain exculpatory evidence and that the denial of such right
is a violation of due process, this right is only a personal right
to obtain exculpatory evidence. It does not require that police
officers take initiative or even assist in procuring evidence on
behalf of a defendant. State v. Swanson (1986), 222 Mont. 357,
360-362, 722 P.2d 1155, 1157-1158; In re Martin (Cal.1962), 374
P.2d 801, 803.
Sadowski characterizes the failure of the police to gather
evidence of a weapon on his behalf as a suppression of evidence.

-
See Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215. However, only a deliberate or intentional
suppression of exculpatory evidence is a per se violation of due
process. To amount to a violation of due process, negligently
suppressed evidence must be material and of substantial use, vital
to the defense, and exculpatory. State, City of Bozeman v. Heth
(1988), 230 Mont. 268, 272, 750 P.2d 103, 105. Furthermore, in
Heth
I this Court drew a distinction between "gatheringv1 and
vvpreservingll
evidence:
Swanson . . .
does stand for the proposition that
police officers have to assist in the gathering of such
[exculpatory] evidence.
. . .
.. . Police officers do not have an affirmative duty
to search out favorable evidence for the defendant. . .
Heth, 750 P.2d at 105. We reaffirmed this rule in State v. Clark
(1988), 234 Mont. 222, 225, 762 P.2d 853, 855-856, holding that
there is no affirmative duty on police officers to obtain
exculpatory evidence, but they must avoid interference with the
efforts on the part of the accused to obtain such evidence.
Accordingly, we find no error on this issue, as well as the other
issues presented in Sadowski's appeal. The judgment is
AFFIRMED.

Justices
Justice William E. Hunt, Sr., dissenting:

I dissent. This Court persists in playing fast and loose with
the rules of evidence, and in so doing, strips the criminally
accused of the few but essential protections afforded them by the
law and by the rules. The American criminal justice system is
premised on the notion that all defendants are innocent until
proven guilty of the crime charged. To that end, the federal and
state rules of evidence disallow testimony about the defendant's
character or about other behavior unrelated to the crime. Recent
decisions by this Court, allowing the state to use evidence of
prior "badM acts, have systematically dismantled this bulwark of
justice, which has been erected to prevent government abuse and
selective punishment of the unpopular. The decision today that
Sadowskits prior act is admissible under Rule 404(b) moves the
Court finally to the absurd result it has been gravitating toward
since its decision in State v. Just, 184 Mont. 262, 602 P.2d 957
(1979). Further, this decision not only tampers with the accusedls
rights through the rules of evidence--it also weakens protections
against self-incrimination by permittingthe state to highlight the
defendant's post-Miranda silence. All in all, the decision is a
disaster for the people of the state of Montana.
Our criminal justice system is carefully designed to try the
accused for the crime for which he or she has been charged, and no
other. The rules of evidence reflect this policy by prohibiting
evidence of other acts or crimes by the defendant unless those acts
are clearly relevant to the crime charged, and are more essential
to the prosecution's case than they are prejudicial to the
defendant. We go further and say that if prior conduct is indeed
relevant, it must then meet the procedural requirements set out in
Just. The Court today has blurred the distinction between the
specific relevancy requirement of 404(b) and the more mechanical
admissibility test set out in Just. By blurring the technical
lines, we impair our ability to see the "big picturefv which Rule
of
404(b) is a crucial part.
Almost three years before Philip Sadowski claimed he took
another man's life in self-defense, he was distraught over a
pending marital separation. In his distress, he contemplated
suicide. Perhaps because he did not have other means at his
disposal, Sadowski chose a gun with which to threaten the suicide.
He phoned the local authorities to tell them about his trauma.
The police arrived, and Sadowski talked to one officer for almost
three hours. According to the officer's testimony, when Sadowski's
wife came home, he pointed the gun at the sheriff for about one
second. One thousand one. That's all. Then, out of earshot of
the sheriff, he pointed it at his own head once, then gave it to
his wife, who gave it to the sheriff. Sadowski was taken into
custody for his own protection and was never charged with a crime.
Now this Court would have us believe that Sadowski's traumatic
evening in 1986 is relevant to whether or not he used his weapon
in self-defense in an after hours party with strangers in 1989.
Incredible.
Rule 404(b) permits only evidence of acts probative of the
fact in issue, not evidence that displays a person's propensity to
act in a certain way. Character evidence is specifically excluded
because of the strong likelihood that the jury will convict on the
overall tendencies of the person rather than on evidence of the
crime charged. What does Sadowskits behavior when faced with a
divorce tell us about his behavior when faced with an attack?
Nothing. Nothing but that in both instances he is capable of
picking up a gun. It tells us nothing about whether when Phil
Sadowski shot Rob Hare the use of force was justifiable.
The majority cites State v. Johns (Or. 1986), 725 P.2d 312,
324, regarding relevancy: "A simple, unremarkable single instance
of prior conduct probably will not qualify, but a complex act
requiring several steps, particularly premeditated, may well
q~alify.~' Where in this case is the similarity of complex acts
requiring several premeditated steps? The majority states that
relevancy based on similarity determines whether an act is
sufficient to prove criminal intent as opposed to self defense.
But the two incidents in question are so completely different in
mental condition of the defendant, surrounding circumstances, act
committed, victims, etc., that no reasonable person could say one
is instructive of the other.
Next, even if we were to somehow conclude that the August 4,
1986, incident was relevant to a self-defense claim, the act would
have to meet the Just requirements for admissibility. Briefly,
Just states that the prior act must be similar, near in time, tend
to establish a common scheme or plan, and be more probative than
prejudicial. An act need not satisfy all four elements, but must
substantially fulfill the requirements. And Just carries the
caveat:
We are concerned, nevertheless, with the possibility that
the exceptions we have discussed thus far may wswallow
upv1 the genera1 rule ... As we have stated: 'The
general rule should be strictly enforced in all cases
where applicable, because of the prejudicial effect and
injustice of such evidence, and should not be departed
from except under conditions which clearly justify such
a departure. The exceptions should be carefully limited,
and their number and scope not increased.' 'I Just, 184
Mont. at 271, 602 P.2d at 962. (citations omitted.)
The Court today has not only swallowed up the general rule, it has
made a feast of that most fundamental principle of our justice
system--the presumption of innocence.
The first Just element is similarity of acts. This dissent
has discussed the glaring dissimilarities of the two acts in
question here. Just, a sexual intercourse without consent case,
permitted evidence of other sexual acts of the same kind with the
same victim, several times within a three year span. Johns, on
which the majority relies, involved two assaults--both during
periods of marital discord when the defendant had failed to become
a police officer and was financially dependent on his spouse, and
both after the defendant had threatened to kill the spouse. It is
this consistency of detail that the first Just element
contemplates, and that the facts before us sorely lack. Most
of the other Just factors are also missing. The 1986 suicide
attempt obviously does not establish a common scheme, plan, or
motive. And, as explained above, the act is not probative of any
fact in issue at all--let alone more probative than prejudicial.
Nearness in time is the only Just factor in evidence. Without any
other support, the act absolutely should not have been admitted.
The general rule has been swallowed whole.
The majority's reliance on Johns is particularly interesting
in light of the fact that Johns sets out six criteria with which
to evaluate prior crimes on the issue of intent, and only one of
those criteria is satisfied here: the present crime charged
requires proof of intent. The other factors, including intent of
prior act, similarity of victims, similarity of acts and of
physical elements, simply are not in evidence. The majority uses
the evidentiary discussion from Johns but does not arrive at the
Oregon Court's inevitable conclusion: that if the acts are
sufficiently dissimilar, the earlier one is not probative of the
later one.
This result is not surprising when one considers the erosion
of the rule as evidenced by this Court's decisions. We have slowly
gotten to the point where today we can say that pointing a gun
briefly at an officer during a suicidal episode almost three years
ago is probative of whether the defendant shot a potential
assailant in self-defense. Why don't we just come out and say that
anything that anybody has ever done wrong is admissible in criminal
prosecutions? The decision today nets the same result.
Further, the decision to permit evidence of the defendant's
post-Miranda silence is questionable at best. ~mplyingthat post-
Miranda silence is evidence of fabrication, regardless of when it
was raised or whether or not an objection was made, is tantamount
to negating the whole purpose of the Miranda warning and the Sixth
Amendment protections of the united States Constitution. The
arrestee is supposed to be perfectly free to remain silent after
arrest without fear of implication. That is what the law intends
and should be what this Court upholds. I would reverse the
District Court.

I concur in the foregoing dissent.

,,";C;
LL'. ,
Justice ;