STATE v BAIN

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No. 13754 IN THE SUPREME COURT OF THE STATE OF MONTANA 1977 STATE OF MONTANA, Plaintiff and Respondent, ALLYN WESLEY BAIN, Defendant and Appellant. Appeal from: District Court of the Fourth Judicial District, Honorable Edward Dussault, Judge presiding. Counsel of Record: For Appellant: Smith, Connor, VanValkenburg & Larrivee, Missoula, Montana Fred VanValkenburg argued, Misoula, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Deschamps, 111, County Attorney, Missoula, Montana Ed McLean argued, Deputy County Attorney, Missoula, Montana Keith Plaristuen, Legal Intern, County Attorney's Office, Missoula, Montana /&$f s l a , L. e n e Submitted: Filed: MAR - 1 19te Decided: December 9, 1977 MAR - 1 1978 Hon. R. D. McPhillips, D i s t r i c t Judge, d e l i v e r e d t h e Opinion of t h e Court: T h i s i s an appeal by defendant Allyn Wesley Bain from a conviction by a j u r y i n t h e D i s t r i c t Court, Missoula County. I n t h e e a r l y evening of May 10, 1976, defendant walked from downtown Missoula, Montana t o t h e 2000 block of South Avenue t o v i s i t family f r i e n d s . p.m. When he l e f t h i s f r i e n d s ' house about 1 1 : O O i t was windy and r a i n i n g l i g h t l y . Defendant d i d n o t l i v e i n Missoula, b u t was s t a y i n g i n Missoula with a cousin, Karen Skroch, who l i v e d i n t h e Hollywood T r a i l e r Court, 1700 Cooley S t r e e t . from where d e f e n d a n t ' s f r i e n d s l i v e d . This was a c r o s s town A s defendant walked back t o t h e t r a i l e r c o u r t , t h e weather became worse. Defendant s t a r t e d looking i n parked c a r s a s he was p a s s i n g t o s e e i f one was unlocked and had keys i n i t . He n o t i c e d keys i n a c a r parked on t h e 1400 block of South 5 t h West. He took t h e c a r , which belonged t o Ray O t t o , and drove t o h i s c o u s i n ' s t r a i l e r . Defendant parked t h e c a r o u t s i d e t h e t r a i l e r , went i n s i d e , and soon went t o bed. The n e x t morning defendant awoke around 10:OO o r 1 1 : O O a.m. and upon remembering t h e s t o l e n c a r was o u t s i d e , he decided t o drive the c a r t o downtown Missoula and leave i t parked somewhere. On h i s way downtown, defendant was s p o t t e d by Lieutenant Richard Thurman, who recognized t h e c a r a s a s t o l e n c a r from a l i s t of s t o l e n c a r s he c a r r i e d i n h i s v e h i c l e . p o l i c e c a r and attempted t o escape. Defendant saw t h e Lieutenant Thurman i n i t i a l l y l o s t s i g h t of t h e c a r , but radioed f o r h e l p i n searching t h e a r e a for it. He soon s p o t t e d t h e c a r a g a i n and proceeded t o pursue i t w i t h l i g h t s f l a s h i n g and s i r e n b l a r i n g . Defendant d i d n o t s t o p , b u t attempted t o escape by t r a v e l i n g through t h e Missoula s t r e e t s a t speeds between 25 t o 50 miles per hour. The p o l i c e chased de- fendant f o r approximately 15 blocks b e f o r e defendant was stopped by a p o l i c e c a r ramming i n t o t h e c a r defendant was d r i v i n g . There were no i n j u r i e s and defendant, o f f e r i n g no r e s i s t a n c e , was taken i n t o custody. The only damage t o t h e c a r r e s u l t e d from t h e p o l i c e ramming i t , i n t h e i r attempt t o s t o p i t . Defendant d i d n o t t a k e anything from t h e c a r , d i d n o t change t h e v e h i c l e i d e n t i f i c a t i o n number, d i d n o t r e p a i n t i t , nor change t h e l i c e n s e p l a t e s . . Defendant was charged w i t h t h e f t , a f e l o n y , i n v i o l a t i o n of s e c t i o n 94-6-302, R.C.M. 1947. T r i a l commenced October 4 , 1976 and concluded October 5 , 1976. During t h e course of t r i a l , defendant moved f o r a m i s t r i a l on t h e grounds of a l l e g e d prosecut i o n misconduct. The motion was denied. The j u r y convicted defendant of t h e o f f e n s e of t h e f t and he was sentenced t o 10 y e a r s i n t h e Montana s t a t e p r i s o n . Two i s s u e s a r e presented on appeal: 1) Was t h e conduct'of t h e prosecuting a t t o r n e y during t r i a l p r e j u d i c i a l t o defendant thereby denying him a f a i r t r i a l ? 2) Was t h e r e s u b s t a n t i a l evidence t o support d e f e n d a n t ' s c o n v i c t i o n of t h e o f f e n s e of t h e f t ? O d i r e c t examination defendant t e s t i f i e d he d i d n o t s t o p n when he f i r s t saw t h e p o l i c e because he knew he was d r i v i n g a c a r t h a t d i d n o t belong t o him, and because he d i d n o t have a valid driver's license. Before t h e prosecution cross-examined defendant, counsel f o r both p a r t i e s had a h e a r i n g b e f o r e t h e t r i a l judge and out of t h e presence of the j u r y . The prosecution b e l i e v e d defendant "committed a fraud" upon the jury by testifying that he did not stop when he first saw the police only because he was driving a car that belonged to someone else and because he did not have a valid driver's license. It therefore wanted to go into defendant's parole status, contending the defendant's primary motive was that if caught driving a stolen vehicle, he would be returned to the Montana state prison. The prosecution cited no authority for its contention and the court refused to allow the prosecution to go into defendant's background. On cross-examination immediately following the hearing in the trial judge's chamber, this colloquy occurred: "BY MR. McLEAN: [Deputy County Attorney] Q . Mr. Bain, have you ever been convicted of a felony? A. Yes, I have. Q . Did that have anything to do with why you avoided Lieutenant Thurman? "m. VanVALKENBURG: [defendant's attorney]. Objection, Your Honor. I'm asking the Court to declare a mistrial at this point. He' s trying to do something here that he can't do. "THE COURT : Sustained. "MR. VanVALKENBURG: Will the Court grant a mistrial? "THE COURT: No, not mistrial; I'm just saying -- "MR. VanVALKENBURG: Then I'd ask the Court to instruct Mr. McLean to stick with what his questions are supposed to be. "rHE COURT: Very well, you're so instructed, Mr. Mc1,ean. IJQ. (By Mr. McLean) Why did you avoid Lieutenant Thurman? A. I told you. "Q. Tell me again, please. A . Okay, because I didn't have a driver's license. I was driving a stolen vehicle. "Q. Mr. Bain, did you have any other motive other than being in a stolen vehicle and being without a driver's license for avoiding Lieutenant Thurman when he put on his siren? A. No. "Q. No. Now, t h a t i s your d i r e c t and unequivocal answer t o t h a t q u e s t i o n ? A. Didn't have any o t h e r motive except I d i d n ' t have a d r i v e r ' s l i c e n s e and I was d r i v i n g a s t o l e n v e h i c l e . "Q. I n regard t o t h a t , do you need t o a c q u i r e permission from anyone t o come i n t o Missoula? "MR. VanVALKENBURG: Your Honor, I ' m going t o o b j e c t . I t h i n k you a l r e a d y know t h e grounds. "THE COURT : Sustained . "MR. VanVALKENBURG: I ' m going t o a s k t h a t M r . McLean be admonished t o r e f r a i n from q u e s t i o n i n g i n t h i s a r e a , and t h a t he r e c e i v e some i n s t r u c t i o n from t h e Court. "THE COURT: The o b j e c t i o n i s w e l l taken, and t h e j u r y w i l l d i s r e g a r d t h e q u e s t i o n j u s t asked by M r . McLean. "Q. [BYM r . ~ c ~ e a nCan I ask you: I f y o u ' r e such a ] God damn, d i d n ' t you law a b i d i n g c i t i z e n , why you s t o p when you saw t h e s i r e n s o r l i g h t s behind you? -- "MR. VanVALKENBURG: "THE COURT : "MR. ML A : cE N A l l r i g h t , asked and answered. Overruled. Pardon, Judge. "THE COURT: Overruled. I t o l d you t h a t because I was i n a s t o l e n v e h i c l e "A. and I d i d n ' t have no d r i v e r ' s l i c e n s e . " I n r e b u t t a l , t h e prosecution wanted t o put on t h e s t a n d a witness from t h e Adult Probation O f f i c e ' t o e s t a b l i s h t h e f a c t defendant was on p a r o l e and had no a u t h o r i t y t o be i n Missoula. The Court would n o t allow t h e witness t o t a k e t h e s t a n d . Under t h e United S t a t e s C o n s t i t u t i o n and t h e 1972 Montana C o n s t i t u t i o n , a c r i m i n a l defendant has a r i g h t t o a f a i r t r i a l . United S t a t e s C o n s t i t u t i o n , Amendment -5 ; 1972 Montana Constitut i o n , A r t i c l e 11, S e c t i o n 24. Misconduct by t h e prosecutor qay form t h e b a s i s of a new t r i a l where t h e p r o s e c u t o r ' s a c t i o n s have deprived t h e defendant of a f a i r and i m p a r t i a l t r i a l . S t a t e v. Toner, (1953), 127 / ,. Mont. 283,-* P.2d 971. This Court has recognized t h a t evidence of t h e same kind a s t h a t previously r u l e d incompetent should n o t be repeatedly o f f e r e d w i t h i n t h e hearing of t h e j u r y , and i f so o f f e r e d , even though r e j e c t e d , may be grounds f o r r e v e r s a l . (1952), 125 Mont. 467, 239 P.2d 995. S t a t e v. S e a r l e , I n S t a t e v. Toner, supra, t h i s Court held t h a t a defendant has n o t had a f a i r and i m p a r t i a l t r i a l where t h e prosecutor c o n t i n u a l l y asks t h e defendant o r h i s witnesses p r e j u d i c i a l and incompetent q u e s t i o n s . The s t a t e apparently f e l t the questions asked were v a l i d questions and t h a t t h e Court was i n e r r o r f o r n o t allowing t h e s t a t e t o q u e s t i o n defendant about h i s parole s t a t u s . The s t a t e f e l t t h i s evidence was r e l e v a n t t o defendant's i n t e n t t o deprive t h e owner of h i s c a r . Evidence was already introduced t o show t h a t when defendant saw t h e p o l i c e , he d i d n o t r e t u r n o r park t h e c a r b u t f l e d . Defendant admitted he knew he would be i n t r o u b l e f o r d r i v i n g a s t o l e n v e h i c l e and not having a v a l i d d r i v e r ' s l i c e n s e . Any p o s s i b l e evidence regarding defendant's p a r o l e s t a t u s could n o t add t o defendant's already demonstrated i n t e n t t o evade t h e police. Not a l l evidence i s admissible merely because i t may be relevant. The c o u r t must weigh t h e probative value of t h e evidence a g a i n s t i t s p o t e n t i a l l y p r e j u d i c i a l e f f e c t on t h e defendant's r i g h t t o a f a i r t r i a l . The t r i a l judge should and does have l a t i t u d e of d i s c r e t i o n on t h e a d m i s s i b l i t y of such evidence. 462. S t a t e v. R o l l i n s , (1967), 149 Mont. 481, 428 P.2d See: ~ o n t a n a ' snew Rules of Evidence, Rule 403, e f f e c t i v e J u l y 1, 1977. Here,there was already evidence i n t h e record t o show defendant's admitted and very apparent i n t e n t t o avoid capture. The a d d i t i o n a l evidence regarding defendant's p a r o l e o r probation s t a t u s would only prejudice t h e defendant. The c o u r t d i d n o t abuse i t s d i s c r e t i o n i n r u l i n g t h e evidence was inadmissible . I t i s n o t t h e duty of t h e prosecuting a t t o r n e y t o make independent determinations concerning t h e a d m i s s i b i l i t y of evidence once t h e c o u r t r u l e s such evidence i s inadmissible. W i l l f u l attempts by counsel t o place excluded evidence before t h e j u r y may r e s u l t n o t only i n a m i s t r i a l , b u t r e v e r s a l . A s a g e n e r a l r u l e , evidence of a s e p a r a t e o r c o l l a t e r a l crime i s not admissible. But an exception may occur when one c r i m i n a l a c t i s so c l o s e l y r e l a t e d t o t h e one upon which t h e charge i s based a s t o form p a r t of t h e " r e s gestae". v. Hensley, (1976), 874. Mont . , State 554 P.2d 745, 33 St.Rep. However, t h e r e i s no a p p l i c a t i o n of t h a t r u l e involved i n t h e f a c t u a l s i t u a t i o n here. W next consider whether t h e repeated attempts t o p l a c e e t h e excluded evidence before t h e j u r y was p r e j u d i c i a l t o defendant. Under t h e e x i s t i n g r u l e s of evidence a t t h e time of t h e t r i a l , defendant was properly asked t h e q u e s t i o n i f he had ever been convicted of a felony. yes. The defendant responded, This evidence was admissible f o r purposes of impeachment, s e c t i o n 93-1901-11, R.C.M. 1947. Despite t h e c o u r t ' s r u l i n g , t h e prosecution then attempted t o ask defendant s e v e r a l quest i o n s from which it could be i n f e r r e d t h a t defendant was on probation o r parole. I n determining whether such questions a r e so p r e j u d i c i a l t o t h e defendant a s t o r e q u i r e r e v e r s a l , t h i s Court must look (1) t o t h e reasonable i n f e r e n c e t o be drawn from t h e q u e s t i o n s , S t a t e v. Toner, supra, and (2) whether such repeated attempts t o o f f e r excluded evidence might have c o n t r i b u t e d t o t h e conviction. S t a t e v. Langan, (1968), 151 Mont, 558, 445 P.2d 565. The only reasonable inference t h a t could be taken was t h a t defendant n o t only was a convicted f e l o n , b u t was on parole o r probation, thereby p u t t i n g i n t o i s s u e f u r t h e r evidence of bad c h a r a c t e r . The i s s u e of defendant's c h a r a c t e r was never opened by t h e defense. Given t h e f a c t t h e jury d e l i b e r a t e d some 6 hours before rendering a v e r d i c t of " g u i l t y " , and t h e f a c t t h a t t h e unauthorized use of a motor v e h i c l e i s a l e s s e r included o f f e n s e w i t h i n t h e crime of t h e f t , S t a t e v. S h u l t s , 169 Mont. 3 3 , 544 P.2d 817, c e r t a i n l y rendered a very r e a l p o s s i b i l i t y of p r e j u d i c e t o defendant i n t h e f a c t u a l s i t u a t i o n of t h i s case. W hold t h e repeated attempts t o put t h e excluded e evidence before t h e jury t o be r e v e r s i b l e e r r o r . W have reversed t h e case on t h e f i r s t i s s u e , t h e r e f o r e e i t i s n o t necessary t o d i s c u s s t h e second i s s u e . The judgment of t h e t r i a l court i s reversed and a new t r i a l i s ordered. I I Hon, R.D. McPhillips, D i s t r i c t Judge, s i t t i n g f o r M r . J u s t i c e Frank I . Haswell. We Concur: Justices.

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