STATE v HOLZWORTH

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No. 81-398 I N THE SUPREME; COURT O THE STATE O MONTANA F F 1982 STATE OF MONTANA, P l a i n t i f f and Respondent, -vsT O A D. H M S HOLZWORTH, D e f e n d a n t and A p p e l l a n t . Appeal from: D i s t r i c t Court o f t h e Seventh J u d i c i a l D i s t r i c t , I n a n d f o r t h e County o f Dawson, The H o n o r a b l e L. C. G u l b r a n d s o n , J u d g e p r e s i d i n g . Counsel of Record: For Appellant: J e r r y D. Cook, Gleizdive, Montana For Respondent: Hon. Mike G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana R i c h a r d A. S i m o n t o n , County A t t o r n e y , G l e n d i v e , Montana Submitted on B r i e f s : Decided: Filed: 8CT 6 - 1982 May 20, 1982 October 6 , 1982 blr. Chief Justice Frank I. daswell delivered the Opinion of the Court. This case presents the question of whether the Statzfs reference to defendant's juvenile offenses during the crossexamination of defendant's reversible error. character witness constitutes The District Court admonished the jury to disregard these references except those of which the witness had personal knowledge and, after a jury conviction, designated defendant a dangerous offender and sentenced him to thirty years at the Montana State Prison. We reverse and remand for a new trial. The character witness called by the defense testified that he had known defendant since he was a little boy, that he had lived all of his life in the area where the incident occurred and that defendant had worked for him for a month in 1978. On cross-examination, the prosecuting attorney questioned the witness as follows: "Q. Were you aware that when he was 15 years old he was charged with attempted rape? "MR. COOK: "0. Objection, Your Honor. And served six months probation? "'JHE COURT: Simonton." There is an objection, Mr. 'The defense attorney then moved for a mistrial, which was denied. A conference was held in court chambers, in which the defense attorney objected to any cross-examination involving juvenile recorus. The Eistrict Court decided to sustain t h e objections to the questions involving juvenile records and gave the following admonition to the jury: "THE COURT: For the record, the last objection is sustained. The jury will disregard any remarks regarding juvenile offenses committed by the defendant, ex- c e p t i n s o r a r a s t h e w l t n e s s may k n o w of: h i s own k n o w l e d g e o f a n y a c t i v i t y . TO t h a t e x t e n t you may a s k . But, regarding j u v e n i l e a c t i v i t y t h a t h e would n o t b e aware o f , under t h e s t a t u t e s h o u l d n o t be referred to." I t is c l e a r of D a v i s v. L.Ed.2d t h i s case does not f a l l within t h e scope A l a s k a ( 1 9 7 4 ) , 415 U . S . 308, 347, where t h e C o u r t h e l d t h a t , 94 S . C t . 1 1 0 5 , 39 i n a criminal case, t h e d e f e n d a n t i s d e n i e d h i s r i g h t o f c o n f r o n t a t i o n when h e is p r o h i b i t e d from a prosecutor's cross-examining regarding the witness's juvenile probation. v. Daniel State 1 9 7 9 ) , 376 So.2d (La. sought to See a l s o , S t a t e Here, however, a defense witness cross-examine f a c t d i s t i n g u i s h e s Davis 1361. witness from t h e c a s e a t b a r . and the this S t a t e v. I n t h o s e j u r i s d i c t i o n s having j u v e n i l e c o u r t s t a t u t e s excluding have evidence similar allowed proceedings include: introduction Stat. Stat., Ch. of Code 45-444 the evidence S S; ( 1 9 7 8 ) ) ; Rhode 43-23-17 youth ( 1 9 7 5 ) ) ; Arkansas (1977)); Illinois (Ill. 1972)); Mississippi ( 1 9 7 2 ) ) ; Ohio ( O h i o Rev. Ann. Code O t h e r s , however, e x c l u d e any i n t r o d u c t i o n Colorado (Colo. Rev. ( 1 9 7 8 ) ) ; M i s s o u r i (Mo. Rev. S t a t . S 2 1 1 . 2 7 1 Island (R.I. and West V i r g i n i a (W.Va. W think e the ( P a g e 1 9 8 1 ) ) ; and T e n n e s s e e ( T e n n . Code Ann. (1977)). 19-1-109 of some These j u r i s d i c t i o n s 12-15-72 t h i s e v i d e n c e and t n e s e i n c l u d e : Stat. MCA, (Smith-Hurd 702-9 37, g 2151.358 5 37-233 (Ala. Ann. (Miss. Code Ann. Ann. of i n c e r t a i n circumstances. Alabama (Ark. t o s e c t i o n 41-5-106, Gen. Code S 49-7-3 the better 14-1-40 Laws, reasoned (1969)); (1980)). cases e x c l u d e t h e e v i - d e n c e f o r a l l p u r p o s e s a n d we s o h o l d h e r e . Cf., C o t t o n v. , ! f ' U n l t e d S t a t e s ( 1 0 t h C i r . 1 9 6 6 ) , 355 F.2d,680, and A n n o t . , 63 The pertinent part of Montana's applicable statute (section 41-5-106, MCA) reads as follows: "Neither the disposition of a youth under this chapter nor evidence given in youth court proceedings under this chapter shall be admissible in evidence except as otherwise provided in this chapter." Eisewhere in the chapter, section 41-5-603, MCA, allows inspection or youth court records to certain people, none of which is applicable to the issue here. Section 41-5-106, MCA, states that neither the disposition nor evidence of youth court proceedings is admissible in evidence. Obviously, testimony of juvenile proceed- ings on cross-examination is "evidence" and the plain language of the statute states that such is not admissible. There is no exception carved out for cross-examination of defendant's character witnesses. In the instant case the defendant was prejudiced by the prosecutor's asking of the questions set out above. The prosecutor and attempted ignored the defense to bring more attorney's objection inflammatory evidence before the jury witnout giving the Uistrict Court the opportunity to rule on the objection. Such conduct is not commendable and contravenes the policy underlying the Youth Court Act that all evidence of this nature be excluded. in State v. Shannon (1933), 95 Mont. 280, 26 P.2d 360, the prosecutor improperly asked several questions about the defendant's alleged prior offenses and, even though the defendant denied the allegations, this Court found the asking of the questions constituted prejudicial error. Accordingly, defendant's conviction was reversed and the case remanded for a new trial. this prosecutor's q u e s t i o n s a b o u t defendant's juvenile This act constituted prejudicial error, and the offenses. judgment Similar reasoning obtains here regaraing of the District Court is vacated and the cause remanded for a new trial. Chief ~ u s t i 6 e We concur: L ' Justices - J u s t i c e Gene B . Mr. I that respectfully generally against an juvenile in the e f f e c t of dissent. accused, questioning Given Daly d i s s e n t i n g . I records do this proper While not case agreeing with the majority be used as evidence that the cannot believe constituted circumstances prosecutor's reversible alleviating the prejudicial t h e e v i d e n c e , j u v e n i l e r e c o r d s may be used "good c h a r a c t e r " t e s t i m o n y by a c r i m i n a l d e f e n d a n t . 6 3 A.L.R.3d 1112 S 4 ( b ) . error. t o impeach S e e , Annot. The r a t i o n a l e f o r t h i s p r o p o s i t i o n is t h a t t h e s e a r c h f o r t r u t h a t a t r i a l is i n h i b i t e d i f a d e f e n d a n t o r a d e f e n s e c h a r a c t e r w i t n e s s is allowed t o g i v e t h e e r r o n e o u s i m p r e s s i o n t h a t t h e d e f e n d a n t is l i l y - w h i t e . v. Canniff (197811 - (2nd C i r . - - -- 1 9 7 5 ) , 5 2 1 F.2d Tenn .Crim.App. See United S t a t e s 5 6 5 ; and S t a t e v. - - - - , 570 Stepheny S.W.2d 356. T h i s case i n v o l v e s t h e b a l a n c i n g o f t h e s e a r c h f o r t r u t h w i t h t h e p o l i c y of p r o t e c t i n g j u v e n i l e r e c o r d s . safeguards surrounding the prosecutor's s a y r e v e r s i b l e error o c c u r r e d . Here, b e c a u s e of questions, I would the not The o b j e c t i o n t o t h e p r o s e c u t o r ' s q u e s t i o n s w a s s u s t a i n e d and a n a d m o n i t i o n was g i v e n . The j u r y was a l s o i n s t r u c t e d t o d i s r e g a r d a n y r e m a r k s made by c o u n s e l n o t s u p p o r t e d by t h e e v i d e n c e . These p r o c e d u r e s l i m i t e d t h e p r e j udi- c i a 1 e f f e c t of t h e q u e s t i o n i n g . I would a f f i r m t h e D i s t r i c t C o u r t ' s j u d g m e n t .

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