STATE v SHAW

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No. 88-594 IN THE STJPREME COURT OF THE STATE OF MONTANA 1989 STATE OF MONTANA, Plaintiff and. Respondent, -vsDENNY DEAN SHAW, Defendant and Appellant. APPEAL FROM: District Court of the Sixteenth Judicial District, In and for the County of Custer, The Honorable Nat Allen, Judge presiding. COUNSEL OF RECORD: For Appellant: John S. Forsythe, Forsyth, Montana For Respondent : Hon. Marc Racicot, Attorney General, Helena, Montana Robert F.W. Smith, Asst. Atty. General, Helena Mr. Keith D. Haker, County Attorney, Miles City, Montana .".* May 11, 1989 Submitted: Decided: U i .I . Clerk .. June 2, 1989 Mr. Justice Fred J. Weber delivered the Opinion of the Court. The defendant, Denny Shaw, appeals his conviction from the District Court of the Sixteenth Judicial District, Custer County. Following a jury trial, the defendant was found guilty of felony theft and burglary and was sentenced to 10 years at the Montana State Prison. We reverse. The defendant's brief presents seven issues for our review. Since we conclude that reversible error has been committed with respect to one of those issues, the remaining six will not be discussed. We consider whether i-t was error to allow the State to impeach a defense witness by asking if he had been convicted of a crime and asking him to disclose what crimes he had committed in view of Rule 609, M.R.Evid. On July 21, 1987, John Helm of Miles City, contacted the Custer County Sheriff's Office to report the theft of a skill saw, some tools, a .22 caliber rifle, two cameras, and miscellaneous groceries. He later reported that a rototiller was missing as well. On August 5, 1987, an anonymous woman called the Custer County Sheriff's Office to report that groceries stolen from the Helm residence were taken to the James Carpenter residence by Mike Johnson. Mike Johnson later gave a statement to the Custer County Deputy Sheriff concerning the offenses. Johnson stated that the Helm burglary was suggested by Lorna Kidd at a drinking party attended by Lewis Carpenter, Rose Carpenter, Carol Carpenter Johnson and Gary Johnson. The evidence established that the defendant was not present at that party. Mike Johnson, his brother Gary, and his wife Carol then traveled to a bar where they met a person named Danny or Denny Shaw. Mike Johnson testified that he and Denny Shaw had commjtted the burql-ary . N p h y s i c a l e v i d e n c e was p r e s e n t e d by t h e S t a t e l i n k i n g o t h e defendant t o t h e crime. S t a t e ' s w i t n e s s e s were Prior t o t r i a l , several of the shown p i c t u r e s of Denny Shaw, whom t h e y i d e n t i f i e d a s t h e man who committed t h e b u r g l a r y w i t h Mike Johnson. A t trial, those witnesses identified the defendant with varying degrees of c e r t a i n t y . During t h e d e f e n d a n t ' s p r e s e n t a t i o n o f h i s c a s e , a bar owner was c a l l e d t o t e s t i f y t h a t i t was n o t t h e d e f e n d a n t who s o l d him t h e . 2 2 r i f l e which was a l l e g e d l y t h e same r i f l e s t o l e n from t h e Helm r e s i d e n c e . was corroborated by another The b a r o w n e r ' s t e s t i m o n y defense witness, Charles Schoonover, who was a t t h e b a r t h e n i g h t t h e gun was b r o u g h t in. Mr. Schoonover t e s t i f i e d t h a t he w a s n ' t s u r e who b r o u g h t t h e gun i n t o t h e b a r , b u t t h a t i t was n o t t h e d e f e n d a n t . He t e s t i f i e d t h a t he had known t h e d e f e n d a n t f o r t e n t o f i f t e e n years. On c r o s s e x a m i n a t i o n o f M r . Schoonover t h e S t a t e engaged i n t h e following inquiry: Q. Have you e v e r been c o n v i c t e d o f a c r i m e ? ChrFstF: Your Honor, I ' m g o i n g t o o b j e c t t o t h a t q u e s t i o n . I don' t b e l i e v e i t ' s w i t h i n t h e scope o f c r o s s - e x a m i n a t i o n . Mr. Corbin: I b e l i e v e t h a t h a s t o be w i t h i n t h e s c o p e , Your Honor. Mr. The Court: It's Q. (by M r . Corhin) A. Yeah. Q. What c r i m e ? A. Intimidation. Q. Any o t h e r c r i m e s ? cross-examination. Have you? Overrl~led. A. Assault. Q. Anything involving guns? The defendant argues that the foregoing crossexamination is impermissible as a method of impeachment under Rule 609, M.R.Evid., which states: For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime is not admissible. The State argues that the introduction of such evidence was harmless error because Mr. Schoonoverls testimony merely corroborated that of the bar owner and added nothing to the defendant1 case. s Despite the substance of the witness " testimony, this Court will not condone prosecutorial conduct which is in clear violation of Rule 609, M.R.Evid. We note that generally, it is the defendant who objects to the introduction of other crimes evidence. See State v. Just (19791 , 184 Mont. 262, 602 P.2d 957; State v. Lave (1977), 174 Mont. 401, 571 P.2d 97; State v. Heine (1976), 169 Mont. 25, 544 P.2d 1212; State v. Jensen (1969), 153 Mont. 233, 455 P.2d 631. In that circumstance, such evidence is inadmissible unless it falls within an exception of Rule 404(b), M.R.Evid.: 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. Mr. Schoonover's testimony as to his crimes failed to reveal a motive, opportunj.ty, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. As a result the evidence was not admissible as an exception under Rule 4 8 4 (b), M.R.Evid. The record fails to disclose any appropriate reason for the State's inquiry as to the prior criminal conduct of Mr. Schoonover. Clearly it was not something inadvertent in nature, as the defendant's attorney objected to the question but was overruled by the trial court. We conclude that the intention on the part of the State was to discredit the witness by showing that he had been engaged in crimes of intimidation and assault, and that the intimidation crime involved guns. We further conclude that the aim on the part of the State was to improperly impugn the character of the defendant and thereby suggest a greater likelihood of guilt of the crimes with which he was charged. We will not tolerate this intentional and significant evasion of our r~zles. We conclude that the prosecution's inquiry clearly was improper under Rule 609, M.R.Evid., and that none of the exceptions stated in Rule 404(b), M.R.Evid. applied. We hold that it was reversibl-e error for the District Court to all-ow this testimonv. The judgment of con~riction is reversed and the case is remanded for new trial. We Concur: _/--7 sit&%ng for ?II,c~' -- - '

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