STATE v BABELLA
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No. 13682 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978 THE STATE OF MONTANA, Plaintiff and Respondent, -vsJOSEPH E. BABELLA, Defendant and Appellant. Appeal from: District Court of the First Judicial District, Honorable Gordon R. Benett, Judge presiding. Counsel of Record: For Appellant: Peter M. Meloy argued, Helena, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Charles A. Graveley argued, County Attorney, Helena, Montana Submitted: Decided: Filed: ,ju$ - , ;- YjTF June 6, 1978 JUL ., l37Q Mr. J u s t i c e Gene B. Daly d e l i v e r e d t h e Opinion of t h e C o u r t . his i s a n a p p e a l from a judgment i n t h e D i s t r i c t Court, ~ e w i s and C l a r k County, e n t e r e d upon a j u r y v e r d i c t c o n v i c t i n g d e f e n d a n t o f t h e c r i m e of o b s t r u c t i n g j u s t i c e , i n v i o l a t i o n of s e c t i o n 94-4-303 ( 2 ) ( a ) , R.C.M. 1947. On October 2 , 1976, t h e Lewis and C l a r k County Sheri f f ' s Department r e c e i v e d i n f o r m a t i o n t h a t one Duffy C h e v a l l i e r , wanted by p o l i c e f o r t h e a l l e g e d commission of two f e l o n y o f f e n s e s , w a s p r e s e n t a t t h e r e s i d e n c e a t 2952 Flamingo D r i v e , Helena, Montana. Two members o f t h e L e w i s and C l a r k County s h e r i f f ' s auxiliary, Harold Watson and L a r r y Heigh, approached t h e r e s i d e n c e and knocked on t h e d o o r . t h e d o o r by Toni M a l l a r y . Deputy Watson was m e t a t Deputy Watson t e s t i f i e d h e i d e n t i - f i e d h i m s e l f a s a n o f f i c e r and s t a t e d h e had a w a r r a n t f o r t h e a r r e s t of C h e v a l l i e r . Toni M a l l a r y i n d i c a t e d s h e had n o t s e e n C h e v a l l i e r f o r a c o u p l e of weeks. Deputy Watson f u r t h e r t e s t i f i e d t h a t defendant, Joseph Babella, w a s i n s i d e t h e r e s i d e n c e and a p p r o x i m a t e l y one f o o t away from him a t t h e t i m e h e s t a t e d h e w a s l o o k i n g f o r and had a w a r r a n t f o r t h e a r r e s t of C h e v a l l i e r . Both Toni M a l l a r y and d e f e n d a n t d e n i e d s e e i n g C h e v a l l i e r . Subsequently, t h e o f f i c e r s , i n checking t h e surrounding a r e a , n o t i c e d C h e v a l l i e r peeking o u t of a window i n t h e r e s i d e n c e . The o f f i c e r s c a l l e d f o r a s s i s t a n c e . Upon t h e a r r i v a l of S h e r i f f Rick Westlund and L i e u t e n a n t ~ i c h a r d Hammerbacker, a s e a r c h of t h e t r a i l e r was conducted. A t t r i a l , Hammerbacker t e s t i f i e d he a l s o i n d i c a t e d t o ~ o n i M a l l a r y and d e f e n d a n t t h a t h e had a w a r r a n t f o r t h e a r r e s t of C h e v a l l i e r . However, n e i t h e r o f f e r e d i n f o r m a t i o n t h a t Chevallier w a s , i n f a c t , within t h e residence. During t h e s e a r c h , C h e v a l l i e r was d i s c o v e r e d h i d i n g under a couch i n t h e l i v i n g room. Both Toni M a l l a r y and d e f e n d a n t t e s t i f i e d t h e y w e r e n e v e r informed, by t h e o f f i c e r s o r o t h e r w i s e , t h a t t h e r e e x i s t e d a w a r r a n t f o r t h e a r r e s t of C h e v a l l i e r , o r t h a t h e was wanted by p o l i c e . P r i o r t o t r i a l d e f e n d a n t s u b m i t t e d a motion i n l i m i n e seeking t o prevent t h e i n t r o d u c t i o n of evidence: " * * * of d e f e n d a n t ' s c o n v i c t i o n of t h e f t of a motor v e h i c l e which o c c u r r e d i n t h e s t a t e of Michigan f o r t h e f o l l o w i n g r e a s o n s : "1. T h a t a t t h e t i m e of t h e o f f e n s e d e f e n d a n t was a j u v e n i l e and n e a r l y t e n y e a r s have passed; " The D i s t r i c t C o u r t d e n i e d t h e motion, s t a t i n g : Okay. A s t o t h e Motion i n "THE COURT: Limine f i l e d h e r e i n , t h e f i r s t p a r t t h e r e o f , a s k i n g t h a t any r e f e r e n c e t o t h e c o n v i c t i o n of t h e f t t o a motor v e h i c l e i n t h e s t a t e of Michigan i s d e n i e d t o t h i s e x t e n t . The County A t t o r n e y may a s k a s i n g l e q u e s t i o n i n r e g a r d t o t h e r e c o r d of t h e Defendant and t h a t i s , whether o r n o t h e h a s been p r e v i o u s l y c o n v i c t e d of a f e l o n y . H e may n o t go f u r t h e r s a v e and e x c e p t i n t h e e v e n t t h a t D e f e n d a n t ' s c h a r a c t e r i s p u t i n i s s u e by t h e defendant himself. * * *" Upon c r o s s - e x a m i n a t i o n o f d e f e n d a n t by t h e S t a t e , d e f e n d a n t was asked whether he had e v e r been c o n v i c t e d of a f e l o n y . Defendant responded, "Yes, I have." Defendant, on t h i s a p p e a l , c o n t e s t s t h e p r o p r i e t y o f h i s impeachment on t h e b a s i s of a p r i o r f e l o n y c o n v i c t i o n , a r g u i n g t h a t h i s motion i n l i m i n e s h o u l d have been g r a n t e d . On a p p e a l , d e f e n d a n t r a i s e s t h e f o l l o w i n g i s s u e : W s it r e v e r s i b l e e r r o r t o a d m i t e v i d e n c e of d e f e n a d a n t ' s p r i o r felony conviction? Defendant bases his contention of error on the grounds that (a) the prior felony conviction was too remote in time; (b) it occurredwhile he was a juvenile; and (c) the District Court failed to exercise its discretion as to whether to grant or deny the motion in limine. The thrust of defendant's argument is that a conviction, remote in time and occurring while a defendant is a juvenile, should not be permitted to be used in the impeachment of a defendant. The sole mention in the record of the remoteness or juvenile nature of defendant's prior Michigan conviction appears in defendant's motion in limine, where the allegation is made that the prior conviction was almost ten years old at the time of trial, at which time defendant was a juvenile. Defendant submitted no proof to support these allegations. While not before the District Court at the time of the denial of the motion, the presentence investigation indicates the particular conviction referred to by defendant was six years old at the time of trial and that defendant was tried and convicted as an adult, being 19 years of age at the time. Further, the report indicates that defendant was in in 1972, a mere four years convicted of a felony - Montana - prior to trial, at which time defendant was 21 years of age. Clearly, if a defendant is making a motion to exclude evidence because of its potential prejudice and absence of probative value, he should be required to make some kind of showing to back it up. Thus, there is no issue of remote- ness or of a juvenile conviction before this Court, as the facts do not support it. Defendant first argues that a defendant's conviction too remote in time cannot be used to impeach his credibility at a subsequent trial. It is settled law in Montana, prior to the effective date of the new Rules of Evidence, that evidence of a prior conviction established by examination of the witness or by record of judgment may be introduced for the purpose of impeaching that witness. Section 93-1901-11, R.C.M. 1947; State v. Gafford, (1977), Mont. , 563 P.2d 1129, 34 St.Rep. 313; State v, Romero, (1973), 161 Mont. 333, 505 P.2d 1207; State v. Coloff, (1951), 125 Mont. 31, 231 P.2d 343. While there is no authority in Montana resolving the question of the effect of the remoteness of prior conviction on its probative value and potential for giving rise to prejudice, the facts show defendant 19 years of age and not a juvenile. Defendant relies primarily upon an Illinois decision for the rule that admissibility of evidence of prior convictions is within the discretion of the trial judge only if a period of less than ten years had elapsed since the later of the date of conviction or the release of the witness from confinement; beyond ten years, the trial judge is without discretion to permit evidence of the prior conviction. People v. Montgomery, (1971), 47 I11.2d 510, 268 N.E.2d 695. Other jurisdictions, however, hold that regardless of the age of the prior conviction, the matter is within the sound discretion of the trial court. State v. Landrum, (1975), 25 Ariz.App. 446, 544 P.2d 270; Martin v. Commonwealth, (Ky. 1974), 507 S.W.2d 485; People v. Wingo, (19731, 34 Cal.App.3d 974, 110 Cal.Rptr. 448; Rascon v. State, (Tex. 1973), 496 S.W.2d 99. Yet other jurisdictions permit introduction of evidence of prior convictions regardless of their remoteness, holding the age of the conviction goes to the weight of the evidence, not its competence. Hall v. State, (Ind. 1976), 339 N.E.2d 802; State v. Bergen, (1975), 13 Wash.App. 974, 538 P.2d 533; People v. Sinclair, 30 Mich-App. 473, 186 N.W.2d 767. The matter is one of discretion on the part of the trial judge, and we find no abuse of discretion. Defendant further contends that a juvenile court judgment cannot be used to impeach the credibility of a witness, citing the general rule in this regard. 63 ALR3d 1112, 83; Rivas v. State, (Tex. 1973), 501 S.W.2d 918; Banas v. State, (1967), 34 Wis.2d 468, 149 N.W.2d 571, cert.den. 389 U.S. 962, 88 S.Ct. 346, 19 L Ed 2d 373; People v. Gomez, (1957), 152 Cal.App.2d 139, 313 P.2d 58. Here, however, defendant had a prior conviction in Montana when over the age of 21 years. Defendant last argues that the trial judge, in denying the motion in limine, did so mechanically and without an exercise of discretion, contrary to the general rule referred to by Justice Shea in his dissent in State v. Gafford, supra. Defendant urges the conviction be reversed on this ground as well. The record in this case is bare of facts tending to support defendant's argument. However, it is logical to presume that when a court is vested with discretionary power regarding determination of an evidentiary matter, a decision on the matter is an exercise of discretion. The question then becomes whether the court abused its discretion under the facts of the case. Defendant does not make this argument. We find no abuse of discretion. The conviction is affirmed. We Concur: D Chief ,Justice s f % ~ SA 4,B Justices
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