author: JUSTICE McDONOUGH JUSTICE HUNT,

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. Philip SADOWSKI, Defendant and Appellant.
    No. 90-065.
    Submitted on Briefs Oct. 26, 1990.
    Decided Jan. 28, 1991.
    Rehearing Denied March 7, 1991.
    247 Mont. 63.
    805 P.2d 537.

      Philip F. Walsh, Lineberger & Walsh, Stephen D. Roberts, Bozeman, for defendant and appellant.
    Marc Racicot, Atty. Gen., Patti Powell, Asst. Atty. Gen., Helena, Michael Salvagni, County Atty., Bozeman, for plaintiff and respondent.
   JUSTICE 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 § 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 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 Comers 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 “Hawk” McKinnis and his girlfriend Lynn Bell. Sadowski did not know either McKinnis or Bell prior to striking up a conversation with them at the bar. McKinnis and Sadowski talked about woodworking. McKinnis stated 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 Sadowski’s shop.

Sadowski, Warburton, McKinnis, and Bell arrived at Sadowski’s 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 Sadowski’s 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, “They’re 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 tinned 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, ‘Well, 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 ....” and that he was going to tell everyone to leave.

Hare allegedly replied “Oh, 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 McKinnis’s version 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 “introduce at 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 Sadowski’s motion 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 McKinnis’ 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. Thirty-one witnesses in all testified. Sadowski’s cousin, Sid 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 Sadowski’s 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), [245 Mont. 470,] 803 P.2d 601, 603, 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 “exceptions” 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 “may” indicates that the second sentence actually lists theories of relevant examples rather than exceptions. State v. Johns (1986), 301 Or. 535, 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; and

(4) -the probative value of the evidence is not substantially outweighed by the prejudice to the defendant. (Emphasis in original.) Just, 602 P.2d at 961. We recently summarized the current state of the Just requirements in State v. Medina (Mont. 1990), [245 Mont. 25,] 798 P.2d 1032, 47 St.Rep. 1832.

“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 similarity” ’ in order to comply with this first criteria. State v. Eiler, [234 Mont. 38, (1988)], 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 at 961...

“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 court’s 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. “Admission of evidence cannot be denied solely 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.” 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 “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.”

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.g. 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. 2 Wigmore, Evidence in TYials at Common Law, § 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, § 5.05; see also Roth, Understanding Admissibility of Prior Bad Acts: a Diagrammatic 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, § 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.g. Note, Admissibility of Evidence of Prior Crimes in Murder Trials, 25 Ind.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, § 5.06. “[T]he 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, § 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. “Asimple 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.

II.

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-Miraracia-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 T 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. WTbile 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, T shot him,’ right?
“A. Yes.
“Q. Wfliat 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 it’?
“A. No, I didn’t.
“Q. Why not?
“A. It didn’t 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, ‘shoot 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? T shot him’. What would a reasonable person do? T 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 defendant’s silence 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 (Mont.1981), [193 Mont. 318,] 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 Sadowski’s 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 prosecutor’s 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 Sadowski’s 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 prosecutor’s 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 Doyle 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-exination 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.

III.

Finally, 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 officers’ 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 (1962), 58 Cal.2d 509, 24 Cal.Reptr. 833, 835, 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, this Court drew a distinction between “gathering” and “preserving” evidence:

“Swanson ... does not 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.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, HARRISON and WEBER concur.

JUSTICE HUNT,

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 “bad” 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 Sadowski’s 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 accused’s rights through the rules of evidence — it also weakens protections against self-incrimination by permitting the 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 of404(b) and the more mechanical admissibility test set out in Just. By blurring the technical lines, we impair our ability to see the “big picture” of which Rule 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 Sadowski’s 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 (1986), 301 Or. 535, 725 P.2d 312, 324, regarding relevancy: “Asimple, unremarkable single instance of prior conduct probably will not qualify, but a complex act requiring several steps, particularly premeditated, may well qualify.” 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 ‘swallow up’ the general 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.’ 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. Implying that 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.

JUSTICE SHEEHY concurs in the foregoing dissent.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. GEORGE RONALD WALTERS, Defendant and Appellant.
    No. 90-142.
    Submitted on briefs Nov. 29, 1990.
    Decided Jan. 28, 1991.
    247 Mont. 84.
    806 P.2d 497.

      Michael Donahoe, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth Griffing, Asst. Atty. Gen., Helena, Patrick L. Paul, County Atty., Tammy Plubell, Deputy County Atty., Great Falls, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

George Ronald Walters appeals his felony convictions of sexual assault and sexual intercourse without consent following a jury trial in the Eighth Judicial District, Cascade County. We affirm.

Walters presents the following issues:

1. Did the District Court abuse its discretion in determining that the four-year-old victim was competent to testify?

2. Did the District Court improperly conclude that the State did not have to prove the reliability of an expert witness’s testimony concerning the child victim meeting the profile of a sexually abused child?

3. Did the District Court abuse its discretion in allowing a police officer to refresh his recollection by reviewing the transcript of an interview the officer had with the appellant?

4. Did the District Court err when it excluded evidence that the victim’s mother had, as a child, made a complaint of sexual abuse against her father?

5. Did sufficient evidence exist to support the appellant’s conviction of sexual intercourse without consent?

6. Did the District Court abuse its discretion in not sentencing the appellant under the incest statute, § 45-5-507, MCA?

In 1988, the appellant, George Ronald Walters, and his wife, Ruth, resided in Great Falls, Montana, as did their son, Rodney Walters. Rodney lived with Cindy Cameron and Cindy’s three-year old daughter, K. C. Although Rodney was not the natural father of K.C., he considered himself K. C.’s stepfather. K. C., in turn, called Rodney “Dad” and also referred to appellant and Ruth as “Grandpa Ron” and “Grandma Ruth.”

On December 28,1988, Rodney, Cindy, and K. C. went to appellant and Ruth’s home to do laundry. While there, Cindy and Rodney decided to go to a movie, which began around 9:00 p.m. Cindy and Rod left K. C. with Ruth; appellant was not home at this time. Prior to departing for the movie, Cindy dressed K. C. in a nightgown and panties and prepared her for bed.

Appellant returned home shortly after Rodney and Cindy had departed. Because Ruth was not feeling well and had to arise early the next day to go to work, she asked appellant to watch K. C. until Rodney and Cindy returned. Ruth then retired to her separate bedroom and closed her bedroom door, although Ruth remained awake and recalled hearing activity in the house until 11:15 p.m.

Ruth testified she left her bedroom and checked on appellant and K. C. on two occasions that evening, once at around 11:30 p.m. and once at around 12:00 a.m. On the first occasion, Ruth noticed that K. C. was not in the bedroom where she had instructed appellant to put her. She then checked appellant’s bedroom; the door was open and the room was dark and quiet. Ruth concluded that appellant and K. C. were asleep in appellant’s bedroom, and returned to her bedroom. On the second occasion, Ruth testified that she got up and noticed that everything appeared the same; appellant’s bedroom was dark and quiet.

Rodney and Cindy returned from the movie at about 12:15 a.m. Upon entering the house, Rodney went into a nearby bathroom, and Cindy proceeded to the living room, where she expected to find K. C. sleeping on the couch. When Cindy did not find K. C. in the living room, she proceeded down the hallway to Ruth’s bedroom. In the hallway, Cindy was greeted with a hug by an excited K. C. K. C. then pulled up her nightgown, revealing that she was no longer wearing her panties. Cindy assumed that K. C. left her panties in a bathroom, and asked her to retrieve them; K. C. responded, “no.” Cindy again asked K. C. to get her panties and K. C., once again, refused and told Cindy that Grandpa Ron had removed her panties and had “tickled her with his pee.”

Shortly thereafter, Rodney appeared from the bathroom, and the visibly-shakened Cindy requested that the three go downstairs in the laundry room and talk. Upon Cindy’s request, K. C. repeated to Rodney and Cindy that Grandpa Ron had removed her panties and “tickled her with his pee.” Rodney then went upstairs, woke up his mother, Ruth, and asked her what happened.

Cindy and K. C. returned upstairs to the living room, where they were joined by Rodney and Ruth. Cindy asked Ruth to find K. C.’s panties. Upon looking for the panties, Ruth entered appellant’s bedroom, and found the panties in his bed. Ruth gave the panties to Cindy. K. C. then repeated her allegations to Ruth, Rodney and Cindy, and added that Grandpa Ron had also “stuck his pee in her mouth and went like that,” gesturing an in-and-out movement with her finger in her mouth. K. C. also stated that “it got small and big.”

Rodney then confronted appellant with K. C.’s allegations; appellant was in a bathroom located close to his bedroom at this time. Appellant responded with further questions and never denied the allegations; he stated that he was tired and wanted to return to bed.

Rodney returned to the living room, and with Cindy and K. C., gathered their belongings and went outside to their car. Rodney then briefly returned to the house where he again confronted appellant about K. C.’s allegations before leaving.

Confused and upset, Rodney, Cindy, and K. C. drove to the home of Cindy’s sister to use a telephone; it was now in the early morning hours of December 29, 1988. While there, Cindy telephoned her parents, who advised her to immediately take K. C. to the hospital for a physical examination. Rodney and Cindy complied with this advice, and took K. C. to the Montana Deaconess Medical Center Emergency Department following the phone call. There, Dr. Nora Gerrity, a pediatrician, observed that K. C. had redness and swelling around her vagina, which was consistent to frictional trauma associated with sexual contact. Dr. Gerrity testified that such redness around the vagina could not have been caused by an infection or a self-inflicted act.

While K. C. was being examined by Dr. Gerrity, Police Detective Robert Dykemen arrived at the hospital and interviewed Rodney and Cindy concerning the incident. The following day, December 30,1988, Dykemen tried to interview K. C., but she refused to talk with him. Additionally, on January 2, 1989, Dykemen interviewed appellant about the incident. Dykemen testified that appellant indicated more than once during the interview that he was feeling “bad and ashamed,” that “it may have happened,” and that he generally felt guilty about the incident.

Irene Johnson, a social worker for the Department of Family Services, interviewed K. C. following the incident. Ms. Johnson testified that K. C. was a verbal three-year-old girl who was able to relate a truthful story. Ms. Johnson also believed that K. C.’s mother did not coach K. C. in any way concerning her accounting of the incident. Ms. Johnson referred K. C. to Dr. Janet Hossack, a psychologist and therapist specializing in child sexual abuse, for counseling.

After working with K. C., Dr. Hossack concluded that K. C.’s behavior was consistent with that of a sexually abused child. Prior to the incident, K. C. had been toilet-trained and after the incident, she not only urinated but defecated on the floor. K. C. had been dry during the day and most nights, but after the incident, was wet during the day and night. K. C. had been sleeping fine in her own bed, but after the incident, had difficulty sleeping without her mother. About a month after the incident, K. C. began acting out sexually by masturbating, had periods of spacing out, experienced temper tantrums, and was increasingly hyperactive and irritable. Based on K. C.’s actions and accounting, Dr. Hossack believed that K. C. had been sexually abused. Dr. Hossack also noted that a three- to four-year-old child is incapable of fabricating such an incident.

On March 14, 1989, appellant was charged by information with sexual assault and sexual intercourse without consent in violation of §§ 45-5-502, and -503, MCA. The information alleged that appellant had subjected K. C. to sexual contact by rubbing his penis against her vaginal area and to sexual intercourse without consent by placing his penis in K. C.’s mouth.

Original counsel for appellant stipulated to the admittance of a videotape deposition of K. C., which was taken on December 7,1989. On December 11, 1989, however, appellant dismissed his original counsel, and obtained new counsel. Upon reviewing the videotape deposition, appellant’s new counsel objected to the admittance of the videotape deposition asserting that K. C. was not a competent witness. A competency hearing was held prior to trial on January 15, 1990. The District Court, after examining K. C. and Dr. Hossack, determined that K. C. was a competent witness, and held K. C.’s videotape deposition admissible.

On the videotape, K. C. testified that she understood what it meant to tell the truth, and that there were consequences if she failed to tell the truth. Although K. C. displayed some confusion and inconsistency during parts of her videotape deposition, she accurately responded to questions pertaining to her age, name, and colors in the room. Additionally, K. C. responded to questions with regard to the incident.

Following the jury trial, on January 16,1990, appellant was found guilty of sexual assault and sexual intercourse without consent. On February 22, 1990, the District Court sentenced appellant to twenty years imprisonment for sexual assault with ten years suspended, and thirty-five years imprisonment for sexual intercourse without consent with ten years suspended, both of these sentences to run consecutively. From this judgment, appellant appeals.

1. Did the District Court abuse its discretion in determining that the four-year-old victim was competent to testify?

Montana Rule of Evidence 601 provides:

“(a) General rule competency. Every person is competent to be a witness except as otherwise provided in these rules.
“(b) Disqualification of witnesses. A person is disqualified to be a witness if the court finds that (1) the witness is incapable of expressing himself concerning the matter so as to be understood by the judge and jury either directly or through interpretation by one who can understand him or (2) the witness is incapable of understanding the duty of a witness to tell the truth.”

‘Witness competency is within the discretion of the trial court.” State v. Eiler (1988), 234 Mont. 38, 43, 762 P.2d 210, 214 (citations omitted). “The requirements for determining competence are ‘capacity of expression and appreciation of the duty to tell the truth.’ ” Eiler, 234 Mont. at 42, 762 P.2d at 213 (citations omitted). Here, the District Court committed no error because it methodically and carefully determined, in a competency hearing before the trial, that K. C. was capable of expressing herself and that she appreciated the duty to tell the truth.

Appellant argues that the District Court erred by relying solely on the information concerning K. C.’s ability to communicate and to tell the truth, which was disclosed diming the competency hearing on the morning of the trial. Appellant contends that the court should have reviewed K. C.’s videotape deposition, which exhibited some inconsistencies in K. C.’s testimony, to determine her competency. Appellant’s argument lacks merit. Inconsistencies in a witness’s testimony are not matters of competency, but rather, matters of credibility. And, evaluating the credibility of a witness falls strictly within the province of the jury. State v. Newman (1990), 242 Mont. 315, 321, 790 P.2d 971, 974 (citations omitted). We therefore hold that the District Court did not abuse its discretion when it determined that K. C. was a competent witness.

2. Did the District Court improperly conclude that the State did not have to prove the reliability of an expert witness’s testimony concerning the child victim meeting the profile of a sexually abused child?

In raising this issue, appellant is essentially asking this Court to adopt the two-pronged Frye test, which states that expert witness testimony lacks foundation unless it is established that the expert’s testimony is based upon well-recognized scientific principles or has gained “general acceptance” in the expert’s field. Frye v. United States (D.C. Cir. 1923), 293 F. 1013, 1014. Appellant’s argument lacks merit. This Court has expressly rejected the “general acceptance” prong of the Frye test. Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 193, 657 P.2d 594, 598; State v. Clark (1988), 234 Mont. 222, 227, 762 P.2d 853, 856.

Montana Rule of Evidence 702, adopted fifty-four years after the Frye decision, provides:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

In Barmeyer, we held that the “general acceptance” rule of the Frye test was “not in conformity with the spirit of the new rules of evidence. ... ‘Unless an exaggerated popular opinion of the accuracy of a particular technique makes its use prejudicial or likely to mislead the jury, it is better to admit relevant scientific evidence in the same manner as other expert testimony and allow its weight to be attacked by cross-examination and refutation.’ ” Barmeyer, 202 Mont. at 193-94, 657 P.2d at 598 (citations omitted). Here, Dr. Hossack’s testimony was neither prejudicial nor misleading. And, appellant had the opportunity to attack the weight of Dr. Hossack’s testimony through cross-examination.

Appellant further argues that besides the “general acceptance” prong, the remaining prong of the Frye test requires a threshold determination of reliability of expert testimony to novel areas of scientific expertise, citing United States v. Downing (3d Cir. 1985), 753 F.2d 1224, 1237-39. Appellant asserts that expert testimony concerning sexual abuse of children is a novel area in Montana. This Court, however, has recognized and sanctioned expert testimony concerning sexual abuse and specifically has allowed expert testimony concerning a child fitting the profile of a sexually abused child, and thus, this area is not a novel area of scientific expertise. State v. Donnelly (Mont. 1990), [244 Mont. 371,] 798 P.2d 89, 93, 47 St.Rep. 1600, 1604. We therefore hold that the District Court committed no error by allowing Dr. Hossack’s testimony without requiring a threshold determination of the reliability of her testimony.

3. Did the District Court abuse its discretion in allowing a police officer to refresh his recollection by reviewing the transcript of an interview the officer had with the appellant?

Prior to testifying Officer Dykeman reviewed a transcript of his interview with the appellant, which occurred on January 2, 1989, for the purpose of refreshing his memory; the transcript was not introduced into evidence. Appellant asserts that the District Court erred by allowing Officer Dykeman to refresh his recollection of the interview by reviewing the transcript because the original audio tapes of the interview were erased by the police department for economic reasons, and these tapes were the best evidence. We disagree. Montana Rule of Evidence 612 allows a witness to refresh his or her memory by reviewing a writing prior to or during their testimony. Furthermore, the best evidence rule concerns matters of admissibility. Here, the best evidence rule is inapplicable because the admissibility or inadmissibility of the writing does not affect the writing’s availability for the use of refreshing a witness’s memory. See Johnson Equipment, Inc. v. Nielson (1985), 108 Idaho 867, 702 P.2d 905, 908. As long as the writing is not introduced into evidence, and here it was not, a witness may refresh his recollection for the purpose of testifying. State v. LaFreniere (1973), 163 Mont. 21, 25-27, 515 P.2d 76, 78-80. We therefore hold that the District Court did not abuse its discretion in allowing the police officer to refresh his recollection of the interview by reviewing the transcript.

4. Did the District Court err when it excluded evidence that the victim’s mother had, as a child, made a complaint of sexual abuse against her father?

Montana Rule of Evidence 402 provides, in pertinent part, that “[a]ll relevant evidence is admissible ....” Montana Rule of Evidence 401 defines relevant evidence as, “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Relevant evidence may include evidence bearing upon the credibility of a witness or hearsay declarant.”

It is within the discretion of the trial court to determine issues of admissibility, and the trial court’s ruling will stand upon review unless the record indicates that the trial court abused its discretion. State v. Crazy Boy (1988), 232 Mont. 398, 402, 757 P.2d 341, 343 (Citations omitted).

Here, the District Court found that Cindy’s accusations of sexual abuse against her father (K. C.’s maternal grandfather) was irrelevant to the case at hand, and thus, inadmissible. Appellant, however, asserts that this evidence supports his theory that on the night of the incident, K. C. was asleep and was recalling a past alleged incident of sexual abuse committed by her maternal grandfather through a dream. Upon being awakened by her mother’s return from the movie, K. C. confused her dream with appellant, and wrongly accused appellant as the assailant.

Appellant’s theory is unfounded. Although Ruth testified that she assumed K. C. was asleep when she twice observed that appellant’s bedroom was dark and quiet the night of the incident, the record is void of any evidence to support appellant’s theory that K. C. was dreaming of a past alleged sexual abuse incident involving her maternal grandfather. We therefore hold that the District Court did not abuse its discretion when it determined that this evidence was irrelevant and inadmissible.

5. Did sufficient evidence exist to support the appellant’s conviction of sexual intercourse without consent?

The standard for reviewing issues concerning sufficiency of the evidence is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573; restated in State v. Wilson (Mont. 1981), [_Mont. _,] 631 P.2d 1273, 1278-79; State v. Geyman (1986), 224 Mont. 194, 195-96, 729 P.2d 475, 476,; State v. Gilpin (1988), 232 Mont. 56, 68, 756 P.2d 445, 451; and State v. Kao (Mont. 1990), [245 Mont. 263,] 800 P.2d 714, 716, 47 St.Rep. 2100, 2102. Appellant asserts that the record lacked sufficient evidence to convict him of sexual intercourse without consent.

Section 45-2-101(61), MCA, provides, in pertinent part, that “ ‘Sexual intercourse’ means penetration of the vulva, anus, or mouth of one person by the penis of another person...” And, § 45-5-503(3)(a), MCA, provides, in pertinent part, that “without consent” means that the victim is incapable of consent because he or she is less that sixteen years of age.

Here, the record contains sufficient evidence that appellant put his penis in three-year-old K C.’s mouth, and therefore, committed the crime of sexual intercourse without consent in violation of § 45-5-503, MCA. Cindy, Rodney, and appellant’s wife all testified that K. C. stated to them on the night of the incident, appellant had “stuck his pee in her mouth and went like that,” gesturing an in-and-out movement with her finger in her mouth. Furthermore, Dr. Hossack testified that K. C. told her an accounting of the incident consistent to the above testimony and that K. C. was not capable of fabricating such an accounting. Dr. Hossack, as well as Irene Johnson, testified that it was their belief that K C. was credible and was not coached by her mother with her accounting of the incident. Furthermore, Officer Dyke-man testified that in his interview with the appellant concerning the incident, appellant indicated more than once that he was feeling “bad and ashamed,” and that “it may have happened.”

It is important to clarify that during trial, appellant’s counsel made no objections based on hearsay grounds with regard to the testimony of Cindy, Rodney, Ruth, Irene Johnson, and Dr. Hossack, which discussed the statements K C. made to them. In the event a hearsay objection had been made, the testimony of Cindy, Rodney, and Ruth, although hearsay, would be excepted as an excited utterance under Montana Rule of Evidence 803(2). However, no hearsay issues were preserved for appeal by proper objections at trial with regard to any of the above testimony. We therefore hold that sufficient evidence existed to support the appellant’s conviction of sexual intercourse without consent.

6. Did the District Court abuse its discretion in not sentencing the appellant under the incest statute, § 45-5-507, MCA?

On January 16, 1990, a jury found appellant guilty of one count of sexual assault and one count of sexual intercourse without consent as charged. On February 22,1990, the District Court sentenced appellant to twenty years imprisonment for sexual assault with ten years suspended, and thirty-five years imprisonment for sexual intercourse without consent with ten years suspended, both of these sentences to run consecutively. Appellant argues that because it was recognized during trial that he and K. C. had a grandparent-grandchild relationship, he should have been sentenced under the incest statute, § 45-5-507, MCA.

Appellant’s argument lacks merit, and is a clumsy attempt to decrease his prison sentence. Appellant was charged and convicted of sexual assault and sexual intercourse without consent, not incest. The District Court properly sentenced appellant under the sexual assault and sexual intercourse without consent statutes, §§ 45-5-502 and -503, MCA. The fact that a grandparent-grandchild relationship between appellant and K. C. was recognized during trial, although no blood-line relationship exists here, does not serve to alter the charges, convictions or sentences against appellant. We therefore find that no error was committed by the District Court.

Affirmed.

JUSTICES BARZ, SHEEHY, McDONOUGH and WEBER concur.


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. EMIL LONGNECK, Defendant and Appellant.
    No. 90-426.
    Submitted on briefs Jan. 3, 1991.
    Decided January 29, 1991.
    247 Mont. 95.
    804 P.2d 1044.
    Allen Beck, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., James Yellowtail, Asst. Atty. Gen., Helena, Harold Hanser, County Atty., Charles A. Bradley, Deputy County Atty., Billings, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Defendant Emil Longneck was convicted of negligent homicide after a jury trial in the District Court of the Thirteenth Judicial District, Yellowstone County. He appeals. We affirm.

The issue is whether the District Court properly enhanced Longneck’s sentence under § 46-18-221, MCA, for the use of a gun.

On November 6, 1989, the body of Winchell Birdtail was found lying in an alley on the south side of Billings, Montana. He had been shot once in the head. His body had apparently been dragged from a motor vehicle and placed in the alley. An autopsy revealed that he had died in the late evening hours of November 5 or early in the morning of November 6, 1989.

Witnesses at trial testified that Birdtail and the defendant left the Arcade Bar in Billings at about 8:00 p.m., November 5, in defendant’s car. One witness testified that several days earlier, defendant had stated that he was trying to obtain a gun. Another testified that defendant told her he had a gun. After leaving the Arcade Bar, defendant and Birdtail visited the homes of several acquaintances, trying to borrow money to continue drinking. They were both described as intoxicated at that time.

An acquaintance in whose basement defendant had been staying testified that the defendant returned to his home alone about 10:00 or 10:30 p.m. The witness observed defendant wetting a rag on an outdoor faucet and then “mess[ing] around” in the front seat of defendant’s car. During the police investigation, rags and pieces of clothing stained with blood consistent with Birdtail’s were found in the yard and basement of that house. The front passenger side of defendant’s car was heavily bloodstained.

The defendant testified in his own behalf. He stated that he and Birdtail were sitting in the car after their last attempt to borrow money failed, and Birdtail indicated that he wanted to commit a robbery to get money. He testified that when he refused to go along with this, Birdtail produced a gun, they struggled over the gun, and Birdtail was shot when it went off. Defendant testified that, “scared,” he had put Birdtail’s body in an alley. He testified that he did not know what had happened to the gun because he had blacked out after the shooting.

Defendant was charged with deliberate homicide. The jury found him guilty of the lesser included offense of negligent homicide. He was sentenced to ten years in prison plus an additional ten years, to run consecutively, for the use of a deadly weapon in the commission of the offense, under § 46-18-221, MCA.

Montana’s weapon enhancement statute, § 46-18-221, MCA, provides that

“[a] person who has been found guilty of any offense and who, while engaged in the commission of the offense, knowingly displayed, brandished, or otherwise used a firearm, destructive device, as defined in 45-8-332(1), or other dangerous weapon shall, in addition to the punishment provided for the commission of such offense be sentenced to a term of imprisonment in the state prison of not less than 2 years or more than 10 years, except as provided in 46-18-222.” Defendant argues that the “knowingly” state of mind required under § 46-18-221, MCA, has not been established and that application of the weapon enhancement statute is therefore improper.

The weapon enhancement statute may be applied in a negligent homicide. State v. Redfern (1987), 228 Mont. 311, 741 P.2d 1339; State v. Stroud (1984), 210 Mont. 58, 683 P.2d 459; State v. Hubbard (1982), 200 Mont. 106, 649 P.2d 1331. By its own terms, the enhancement statute applies to “any offense.”

The defendant’s testimony concerning the events surrounding the shooting was that

“I started back towards my door, and he told me to wait. And he turned around and looked back towards the back, and that’s when I grabbed for the gun.
“Q. Okay. This was while you were parked someplace on the south side?
“A. Yes.
“Q. All right. When you grabbed for the gun, will you tell the jury what happened?
“A. We struggled over it.
“Q. Please continue.
“A. And it went off, and he flew back — or I thought he jumped back at first, but I guess he flew back from the bullet wound. The bullet hit him.”

The defendant’s assertion that the shooting of Birdtail was accidental does not negate his admission that he voluntarily grabbed for the gun being held by Birdtail. We hold that, under the facts of this case, defendant’s voluntary act of grabbing for the gun is sufficient to meet the “knowingly” requirement of the enhancement statute.

Defendant’s counsel states in bis reply brief that he has been instructed to bring to this Court’s attention defendant’s argument that the evidence is insufficient to support his conviction. Attached to the reply brief is a typewritten sheet containing defendant’s argument on that issue. Issues first raised in a reply brief are not properly before this Court and will not be considered on appeal. Rule 23(c), M.RApp.R; Downs v. Smyk (1982), 200 Mont. 334, 336-37, 651 P.2d 1238, 1239, aff’d. after remand, 211 Mont. 374, 685 P.2d 347; Denend v. Bradford Roofing & Insulation (1985), 218 Mont. 505, 509, 710 P.2d 61, 63-64.

Affirmed.

JUSTICES HARRISON, HUNT, McDONOUGH and WEBER concur.


author: JUSTICE BARZ

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. CHARLES P. VAN PELT, JR., Defendant and Appellant.
    No. 90-355.
    Submitted on briefs Oct. 19, 1990.
    Decided Jan. 30, 1991.
    247 Mont. 99.
    805 P.2d 549.

      Andrew P. Suenram, Max Hansen, P.C., Dillon, for defendant and appellant.
    Marc Racicot, Atty. Gen., Deanne L. Sandholm, Asst. Atty. Gen., Helena, Thomas R. Scott, Beaverhead County Atty., Calvin Erb, Deputy Beaverhead County Atty., Dillon, for plaintiff and respondent.
   JUSTICE BARZ

delivered the Opinion of the Court.

Charles P. Van Pelt, Jr., appeals his felony convictions by a jury on two counts of incest, one count of sexual assault, and one count of attempted sexual intercourse without consent in the District Court of the Fifth Judicial District, Beaverhead County. We affirm.

Appellant raises two issues on appeal:

1. Whether the District Court erred in failing to subpoena an out-of-state witness.

2. Whether the District Court erred in granting the State’s motion in limine which precluded the introduction of evidence under § 45-5-511(4), MCA.

Charles Van Pelt, Jr. was charged by information on February 22, 1990, with the crimes of incest (two counts) under § 45-5-507, MCA, sexual assault under § 45-5-502, MCA, and attempted sexual intercourse without consent under §§ 5-4-103 and 45-5-503, MCA. He was convicted on all counts by jury verdict on April 25, 1990. The victim of these crimes was T. A. E., step-daughter of Van Pelt. T. A. E. was nine years old in 1988, the time the crimes were found to have occurred and is the natural daughter of Joyce Edwards Van Pelt and Ron Edwards. Joyce and Ron were divorced in 1987. Following the divorce, T. A. E. was placed in a foster home in Grant, Montana. Joyce and Van Pelt were married in February of 1988. T. A. E. left the foster home in July, 1988, and returned to Dillon, Montana, by court order to live with her mother, Joyce and Van Pelt. S. V. P. also lived with the family. S. V. P. is Van Pelt’s daughter from a previous marriage.

T. A. E. testified at trial that shortly after she returned to Dillon to live with her mother, Van Pelt began touching her breasts and vagina. She testified that he attempted to have sexual intercourse with her and that he forced her to perform oral sex on him. T. A. E. was able to describe in detail the acts performed by Van Pelt.

In September, 1988, the family decided to move to Kentucky. They initially travelled to Santa Cruz, California, where they resided with relatives for a period of about seven months. In the spring of 1989 they started out for Kentucky. En route to Kentucky they had vehicle problems and had to stay at the Salvation Army Family Lodge in Oklahoma City, Oklahoma. While at the Lodge, T. A. E. made acquaintance with Pam Bennett, another resident at the Lodge. Pam observed T. A. E. and Van Pelt interact, and sensing something was wrong, questioned T. A. E. about her relationship with Van Pelt. T. A. E. confided in Pam and related to her the incidents that had occurred between herself and Van Pelt. Pam notified the authorities in Oklahoma and following a civil investigation, T. A. E. was removed from the Van Pelts’ care and returned to her natural father in Dillon. Van Pelt was living in Williamsburg, Kentucky, at the time charges were brought against him by this State. He turned himself in to Kentucky authorities, was released on bond, and travelled to Dillon for trial.

The first issue is whether the District Court erred in denying appellant’s motion to subpoena an out-of-state witness.

On April 16, 1990, Van Pelt filed a motion for an order to summon witnesses from another state and a brief in support thereof. Pursuant to § 46-15-113, MCA, Van Pelt requested the District Court to subpoena Joyce Van Pelt and Doris Bodine, both of whom were living in Kentucky. This Court held in State v. Sanderson (1985), 214 Mont. 437, 692 P.2d 479, that § 46-15-113, MCA, provides the only procedure to subpoena an out-of-state witness. The primary reason for finding a need to subpoena Van Pelt’s wife, Joyce, was to provide her with financial assistance in coming to Montana. In order to expedite the process, the District Court, the County Attorney, and the defense made arrangements to have Joyce come to Montana and chose not to subpoena her under § 46-15-113, MCA.

The District Court denied appellant’s motion to subpoena the second witness, Doris Bodine, finding that she was not a material witness. Doris Bodine is Van Pelt’s ex-sister-in-law (the natural sister of Van Pelt’s previous wife) and was a neighbor to the Van Pelts during the time the molestations occurred. Appellant states that Doris Bodine was to testify as to where T. A. E. was during the periods that her mother was at work. Apparently T. A. E. would spend a considerable amount of time at the Bodines, playing with Doris’ children. It is appellant’s assertion that he could not have molested T. A. E. because he never had the opportunity.

In Sanderson we stated that compelling an out-of-state witness to attend a trial was a discretionary decision resting solely with the trial court judge. Sanderson at 448, 692 P.2d at 485. We also held that the District Court’s finding as to whether a witness is a material witness or not, under § 46-15-113, MCA, will not be disturbed absent a clear abuse of discretion. Sanderson at 449, 692 P.2d at 486. The District Court found Doris Bodine not to be a material witness. Testimony that T. A. E. was at her house most of the time would have been cumulative. There was ample evidence at trial to show that T. A. E. was over at Doris’ while Joyce Van Pelt was working. The testimony also substantiated the fact that Van Pelt had many opportunities to molest T. A. E. while Joyce was absent from the house for purposes other than work. The District Court’s decision that Doris Bodine was not a material witness is supported by the record and is not an abuse of discretion.

The second issue is whether the District Court erred in precluding the introduction of certain evidence under § 45-5-511(4), MCA.

On April 16,1990, the State filed a motion in limine to prevent the defense from introducing certain evidence regarding any alleged previous sexual abuse of T. A. E. Appellant sought to introduce evidence that T. A. E. was sexually assaulted by a cousin when she was five years old. It was argued by appellant that T. A. E. made allegations to her mother concerning an incident involving digital penetration of her vagina. Appellant further argued T. A. E. had also made allegations to her mother that her natural father, Ron Edwards, had drilled holes in the bathroom wall to watch her dress and had T. A. E. lie on him until he obtained an erection. Appellant made an offer of proof and on April 23 prior to trial, the District Court heard argument on the offer of proof and received appellant’s brief. The court reserved making any ruling at that time but subsequently denied appellant’s offer of proof during his cross-examination of T. A. E.

The motion in limine was granted on the basis of § 45-5-511(4), MCA, which provides:

“(4) No evidence concerning the sexual conduct of the victim is admissible in prosecutions under this part except:
“(a) evidence of the victim’s past sexual conduct with the offender;
“(b) evidence of specific instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease which is at issue in the prosecution.”

This Court has previously stated the purpose of § 45-5-511(4), MCA, is to prevent the trial from becoming a trial of the victim. State v. Higley (1980), 190 Mont. 412,422, 621 P.2d 1043,1050. Appellant argues that T. A. E. would not be made a victim by allowing inquiry into possible prior sexual abuse. It is argued that § 45-5-511(4), MCA, prevents probing into past sexual conduct, and not past sexual abuse. Appellant contends that because T. A. E. could not have consented to any sexual acts, and was a victim of abuse through no fault of her own, the raising of prior incidents of abuse would not violate § 45-5-511(4), MCA. In other words, it is alleged that there is no prior sexual misconduct of the victim being put at issue. We find this argument unpersuasive. Appellant cannot argue, as he attempts to, that he does not seek to attack T. A. E ,’s credibility but rather seeks to demonstrate that T. A. E. could have gained her knowledge of sex outside of her contact with defendant. The major purpose in appellant’s attempt to bring into evidence the incidents of prior abuse is to attack T. A. E.’s credibility. Whether under the guise of showing the jury how T. A. E. may have obtained her knowledge of sex, or not, the fact is appellant wished to convince the jury that T. A. E. fabricated the charges against him. The only way the jury could have found appellant not guilty of the charges against him, would be by finding that T. A. E.’s allegations were false. This is not to say that § 45-5-511(4), MCA, provides an impenetrable wall of protection for T. A. E. and does not allow for her credibility to be questioned or attacked. The Montana Rules of Evidence certainly allow the credibility of a witness to be attacked, however, these rules are not without limitation. See Rule 608, M.R.Evid. Excluding evidence of alleged specific instances of prior abuse was within the discretion of the District Court. The District Court must determine whether the evidence is probative and weigh that probative value against any prejudicial potential the evidence may carry. The District Court found the evidence of prior sexual abuse inadmissible. We will not disturb the District Court’s ruling on admissibility of evidence absent an abuse of discretion. State v. Crazy Boy (1988), 232 Mont. 398, 402, 757 P.2d 341, 343.

The evidence clearly supports the finding that the prior sexual abuse would not be relevant to the issue of whether appellant sexually molested T. A. E. The conduct alleged in the prior abuse of T. A. E. consisted of digital penetration of the vagina, body-to-body touching, and “peeping.” The knowledge T. A. E. exhibited at trial of sexual activity could not have been gained from this type of prior abuse. There was sufficient evidence in T. A. E.’s testimony to conclude that the knowledge she had came from her activities with the appellant and not from any prior sexual abuse.

Appellant also argues that § 45-5-511(4), MCA, as applied by the District Court, violated his constitutional right to confrontation of witnesses under both the United States Constitution and the Montana Constitution. This Court stated in State v. Anderson (1984), 211 Mont. 272, 284, 686 P.2d 193, 200, that a defendant’s right to cross-examine the complaining witness in a sexual offense case would be constricted “where there is evidence of prior false accusations.” (Emphasis added.) In other words, any accusations or allegations the victim has made of prior sexual conduct must have been proven to be false or admitted to be false before it is admissible.

“If the charges are true or reasonably true, then evidence of the charges is inadmissible, mainly because of its prejudicial effect, ... but certainly because of its irrelevance to the instant proceeding. ... Furthermore, evidence of prior charges which have not been adjudicated to be true or false; i.e., which may be true or false is also inadmissible, primarily because its introduction circumvents the interest in preserving the integrity of the trial and preventing it from becoming a trial of the victim... (reception of evidence which may be true or false allows circumvention of laws designed to protect legitimate interests of victim). These limitations do not infringe upon a defendant’s right to confrontation. (Citations omitted; emphasis in original.)”

Anderson at 284-285, 686 P.2d at 200.

We hold that the District Court did not abuse its discretion in disallowing evidence of prior sexual abuse.

Affirmed.

JUSTICES HARRISON, SHEEHY, HUNT and WEBER concur.

       In 1985, §45-5-503(5), MCA, was recodified as § 45-5-511(4), MCA.