STATE v SHORT
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No. 84-427 IN THE SUPREME COURT OF THE STATE OF MONTANA 1985 STATE OF MONTANA, Plaintiff and Respondent, -vsCURTIS VAUGHAN SHORT, Defendant and Appellant. APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable James B. Wheelis, Judge presiding. COUNSEL OF RECORD: For Appellant: John E. Riddiough argued, Missoula, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana John Paulson argued, Asst. Atty. General, Helena Robert L. Deschamps, 111, County Attorney, Missoula Montana: Karen Townsend argued, Deputy County Atty. Submitted: April 15, 1985 Decided: July 11, 1985 Filed: me. j. 3 1905 Clerk Mr. Justice Court. L.C. Gulbrandson delivered The d e f e n d a n t a p p e a l s from a his motion for a new trial by the Opinion and a judgment District the F o u r t h J u d i c i a l D i s t r i c t , Missoula County. e n t e r e d and t h e m o t i o n d e n i e d on May 2 4 , of the d e n i a l of Court of the T h e judgment was 1984, a f t e r a j u r y v e r d i c t o f g u i l t y on two c o u n t s oF f e l o n y t h e f t . W e affirm. I n J a n u a r y 1 9 8 3 , t h e Oregon S t a t e P o l i c e c o n t a c t e d F r e d Simmons, an informant, to assist in an investigation of C u r t i s S h o r t , t h e d e f e n d a n t , b e i n g c o n d u c t e d by t h e M i s s o u l a County S h e r i f f ' s Office. Simmons had known and worked w i t h Short about eleven o r twelve years e a r l i e r . Police arranged meeting out" the for next Simmons day, o r disassembling provide titles and to Simmons trucks contact and Short The Oregon S t a t e Short. discussed and t h e y a g r e e d license plates During a "honing Simmons would f o r v e h i c l e s which S h o r t would s t e a l . S h o r t p l a n n e d t o t r a v e l t o M i s s o u l a on J a n u a r y 2 6 , t o arrange for the theft of a semi-tractor 1983, w h i c h had b e e n " s p e c i a l o r d e r e d " by someone i n C a l i f o r n i a . Simmons i n f o r m e d the they Oregon information authorities of the plans a l o n g t o t h e Missoula and passed County S h e r i f f ' s the Office. The Oregon p o l i c e r e n t e d a maroon Buick f o r Simmons, g a v e him money f o r e x p e n s e s and s e n t a n o t h e r i n f o r m a n t , Mike W e s t , t o accompany Simmons and S h o r t t o M i s s o u l a . S h o r t , Simmons and West w e r e u n d e r c o n s t a n t s u r v e i l l a n c e by t h e M i s s o u l a a u t h o r i t i e s from t h e t i m e t h e y a r r i v e d i n S t . R e g i s and M i s s o u l a u n t i l t h e y r e t u r n e d t o Oregon. a r r i v e d i n Missoula, When t h e y Simmons and W e s t c o n t a c t e d t h e M i s s o u l a County S h e r i f f ' s O f f i c e and West was f i t t e d w i t h a c o n c e a l e d radio transmitter. The three men m e t with several p e o p l e t o a r r a n g e f o r t h e t h e f t o f two s e m i - t r a c t o r s , other a green 1981 Kenworth owned by G e b e r t ' s Trucking of Missoula white Montana 1977 Peterbilt owned by Medical and a Supply of Missoula. These t r u c k s w e r e s u b s t i t u t e s f o r t h e one S h o r t originally intended to steal because that vehicle was no S h o r t a l s o m e t w i t h a Missoula businessman longer available. and d i s c u s s e d c a m o u f l a g i n g s e r i a l numbers. At about p.m. 9:15 on January 27, 1983, a Missoula d e p u t y o b s e r v e d t h e maroon Buick and S h o r t a t t h e s i t e where the semi Gebert was parked. Short got out of the car, e n t e r e d t h e s e m i through t h e bottom p o r t i o n o f t h e passenger side and With drove the Buick Interstate, it away w i t h o u t t u r n i n g on t h e h e a d l i g h t s . following, exchanged Short places with drove the someone in semi to the the car and d r o v e t o t h e Montana M e d i c a l f a c i l i t y . There he drove o f f i n t h e Montana M e d i c a l t r u c k and t r a i l e r . Deputies followed t h e t r u c k t o E a s t M i s s o u l a , where S h o r t d r o p p e d t h e t r a i l e r and t h e n headed w e s t on t h e I n t e r s t a t e . The two t r u c k s and t h e Buick w e r e u n d e r s u r v e i l l a n c e u n t i l t h e y a r r i v e d a t S h o r t ' s farm a t Canby, Oregon. Oregon activities. authorities continued They e s t a b l i s h e d a to monitor Short's " s a f e h o u s e " f o r Simmons t o l i v e i n which was e q u i p p e d w i t h a t e l e p h o n e r e c o r d e r , formed Suncrest Trucking, Inc., t o d o b u s i n e s s and p r o v i d e d phony t r u c k t i t l e s and v e h i c l e i d e n t i f i c a t i o n numbers f o r Simmons' use i n t h e operation. The a u t h o r i t i e s w e r e u n a b l e t o k e e p u p w i t h t h e i n c r e a s i n g number o f v e h i c l e s b e i n g s t o l e n by S h o r t , s o i n A p r i l 1983, t h e y t e r m i n a t e d t h e o p e r a t i o n . On O c t o b e r 28, 1 9 8 3 , a n i n f o r m a t i o n was f i l e d c h a r g i n g S h o r t w i t h two c o u n t s o f felony t h e f t . After t h e omnibus h e a r i n g on March 9 , 1 9 8 4 , t h e S t a t e g a v e n o t i c e o f i n t e n t t o r e l y on o t h e r c r i m e s e v i d e n c e . 1984. The t r i a l began on A p r i l 9 , A t t r i a l t h e S t a t e presented t h e testimony of o f f i c e r s from the Oregon Sheriff's Police and O f f i c e who p a r t i c i p a t e d surveillance. Short State and Simmons, Simmons in Missoula testified for the State. in the Missoula County investigation and two men who h a d m e t w i t h and West the to prior the thefts, also S h o r t ' s p r i o r s t a t e m e n t and a n o r a l a d m i s s i o n t o a n Oregon o f f i c e r w e r e a l s o i n t r o d u c e d a t t r i a l . During cross-examination sought to introduce copies of of Simmons in in Washington. bench When warrants failure t o connection with h i s charges counsel Simmons, Simmons f o r Short issued appear on acknowledged for theft on the s t a n d t h a t he had f a i l e d t o a p p e a r w i t h o u t l a w f u l e x c u s e , t h e c o u r t refused t o admit t h e warrant copies. that he did not Washington, wish to asserting self-incrimination. involved discuss the his After theft charges in against the charges defense counsel those charges, and t h e An Oregon d e t e c t i v e l a t e r S t a t e ' s o b j e c t i o n was s u s t a i n e d . regarding that property, attempted t o discuss t h e d e t a i l s o f testified pending privilege eliciting Short s of the Simmons i n d i c a t e d t h e p r o p e r t y d i s p u t e between S h o r t and Simmons. Defense Cromwell, a counsel brother presented of one o f the the testimony alleged of Thomas partners in the Oregon t h e f t s , who r e l a t e d c e r t a i n c o n v e r s a t i o n s h e h a d w i t h Simmons in l a t e December 1983 and e a r l y January 1984. He attempted t o introduce tape recordings o f t h e conversations, b u t t h e t r i a l c o u r t r e f u s e d t o a d m i t them. The t r i a l c o u r t a l s o r e f u s e d two p r o p o s e d d e f e n s e i n s t r u c t i o n s s e t t i n g f o r t h S h o r t ' s "theory" of defense. on A p r i l 13, 1984, t h e j u r y A t the close of the t r i a l , r e t u r n e d a v e r d i c t o f " g u i l t y " on b o t h c o u n t s o f t h e f t . Later, and gave Simmons w a s a statement on t h e Washington Oregon attorney arrested to an charges containinq information not testified to at Short's trial. Short made a motion for a new trial based on this information which was argued before the District Court on May 24, 1984. The court denied the motion and sentenced Short to a total of twenty years with twelve suspended. He was designated a non-dangerous offender for purposes of parole. The four issues presented on appeal are: (1) Whether the District Court violated defendant ' s Sixth Amendment right to confrontation of witnesses by not allowing examination of Simmons regarding Washington charges against him for the purpose of showing bias or motive to be untruthful during defendant's trial? (2) Whether the District Court erred in not allowing the introduction of tape recordings of telephone conversations between Simmons and another witness, Cromwell, which were offered by defendant to impeach Simmons? (3) Whether the District Court erred in not giving two of defendant's proposed instructions which explained his "quasi-entrapment" theory of the case? (4) Whether the District Court erred in denying defendant's motion for a new trial on the above grounds and on the basis of newly discovered evidence? The Sixth Amendment to the United States Constitution guarantees the right of an accused in a criminal prosecution "to be confronted with the witnesses against him." right is secured for defendants in state as we11 federal criminal proceedings. by the cross-examination." as in Pointer v. Texas (1965), 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. secured This confrontation "A primary interest clause is that of State v. Camitsch (Mont. 1981), 626 P.2d 1250, 1255, 38 St.Rep. 563, 568, citing Davis v. (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347. Alaska A witness' credibility may be attacked through cross-examination to reveal possible biases, prejudices, or ulterior motives if they relate directly to issues or personalities in the case at hand. Davis, 415 U.S. Camitsch, 626 P.2d However, the extent of at 1254-1256. at 315, cross-examination on whether a witness has been accused of another or discretion. P.2d prior crime is within the trial court's State v. Carns (1959), 136 Mont. 126, 136, 345 735, 741; State v. Howard (1904), 30 Mont. 518, 77 P. 50; see also, Alford v. United States (1931), 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624. for these purposes probative value The extent of cross-examination is restricted because of the in relation to credibility. limited An unproven charge does not necessarily indicate a witness' credibility, since innocent persons may be arrested or accused of a crime and are presumed innocent until guilt is legally established. 81 Arn.Jur.2dI Witnesses $587. This Court has permitted cross-examination on threats or inducements by the State, the failure to charge the witness with a crime and the reason for the witness' presence in jail, State v. Ponthier (1959), 136 Mont. 198, 346 P.2d 974; witnesses, State v. Booke on claimed intimidation of (1978), 178 Mont. 225, 583 P.2d 405; and on threats and assaults to the witness by a party, Cissel v. Western Plumbing and Heating (Mont. 1980), 612 P.2d 206, 37 St.Rep. 966. Short argues that the trial court unconstitutionally restricted his cross-examination of Simmons by not allowing extensive examination of pending charges against Simmons. Simmons admitted under cross-examination that he had failed to appear on bench warrants from the State of Washington. He also acknowledged that the charges in Washington involved an allegation that he had stolen Short's property. The jury heard about Simmons' participation in Short's crimes, his alleged theft of Short's property, his fear of "the mob" and his desire for protection. This cross-examination brought out all the information necessary to argue the credibility, motive and bias of this witness to the jury. We hold that limiting the extent of the cross-examination on. the pending charges in Washington did not violate Short's right to confrontation of witnesses and was not an abuse of the trial court's discretion. During cross-examination, Simmons asserted his privilege against self-incrimination concerning the pending charges in Washington. That privilege is not waived by testifying for Rule 608(b), M.R.Evid. the prosecution. The trial court property restricted inquiry into those charges on this basis as well. Short also contended, as part of this issue, that the trial court should have admitted copies of the Washington bench warrants into evidence for the purpose of showing Simmons' bias or motive to be untruthful. M.R.Evid. Rule 608 (b), provides: "Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness . or untruthfulness . ." The trial court exercised its discretion by allowing inquiry into a specific instance of conduct, Simmons' failure to appear on the warrants, and would have admitted the exhibits if he had denied his failure to appear. We hold the trial court acted within the limits of its discretion by restricting the impeachment evidence. to As recordings the of second issue, Short c o n v e r s a t i o n s made contends nearly a that year tape after the t h e f t s between Simmons and a n o t h e r w i t n e s s , Thomas Cromwell, w e r e p r o b a t i v e b e c a u s e t h e y would h a v e a l l o w e d t h e j u r y t o hear Simmons' voice tell how S h o r t had been framed. The t r i a l c o u r t a g r e e d t o p e r m i t u s e o f t h e t a p e s f o r impeachment a witness. o r r e f r e s h i n g r e c o l l e c t i o n s of The t r i a l c o u r t a l s o e x p r e s s e d c o n c e r n a b o u t Simmons n o t b e i n g a v a i l a b l e f o r cross-examination s i n c e he had been excused as a witness. A f t e r Cromwell t e s t i f i e d a b o u t c e r t a i n s t a t e m e n t s by Simmons which w e r e i n c o n s i s t e n t w i t h h i s e a r l i e r t e s t i m o n y , t h e t a p e s w e r e o f f e r e d a t t r i a l t o r e b u t t h a t e a r l i e r t e s t i m o n y and a s p r i o r c o n s i s t e n t s t a t e m e n t s by Cromwell t o r e b u t a c h a r g e o f subsequent f a b r i c a t i o n . Rule 403, M.R.Evid,provides: "Although relevant, evidence may be excluded if i t s probative value is s u b s t a n t i a l l y o u t w e i g h e d by t h e d a n g e r o f unfair prejudice, confusion of the i s s u e s , o r m i s l e a d i n g t h e j u r y , o r by c o n s i d e r a t i o n s o f undue d e l a y , w a s t e o f time, or needless presentation of cumulative evidence." Both p a r t i e s acknowledge t h a t t h e t r i a l c o u r t i s g i v e n wide d i s c r e t i o n t o e x c l u d e e v i d e n c e a s c u m u l a t i v e even t h o u g h it is relevant. I n S t a t e v . B r e i t e n s t e i n ( 1 9 7 9 ) , 180 Mont. 233, 5 0 3 , 591 P.2d t h i s Court held t h a t t h e t r i a l c o u r t d i d n o t abuse i t s discretion excluded by ruling under Rule that 403. repetitious The testimony defendant in should be Breitenstein s o u g h t t o i n t r o d u c e c o r r o b o r a t i n g e v i d e n c e o f a t h r e a t which t h e v i c t i m had made t o t h e d e f e n d a n t . Since t h e defendant had threat, previously testified about the the court c o n c l u d e d t h a t t h e p r o b a t i v e v a l u e of t h e a d d i t i o n a l e v i d e n c e was 403. s u b s t a n t i a l l y o u t w e i g h e d by C i t i n g S t a t e v. the factors l i s t e d i n Rule (1909) , 38 Mont. Hanlon 557, 100 P. 1035, t h i s C o u r t q u o t e d t h e f o l l o w i n g p a s s a g e w i t h a p p r o v a l : 8 "As the admissibility of the evidence itself must rest largely in the sound discretion of the trial court, so must the extent to which the investigation of collateral issues arising thereon may so be lodged in its discretion, and its action will not be reviewed except where its discretionary power has been manifestly abused." 180 Mont. at 509, 591 P.2d at 236. Even if the tapes were otherwise admissible, the trial court had discretion to exclude them where the time necessary to hear them would not be judiciously expended because the evidence was merely cumulative and otherwise before the jury. 31A C.J.S. Evidence, S 166. Faced with the request to play several hours' worth of tapes which would merely repeat the testimony of a previous witness regarding collateral matters, we hold the trial court did not abuse its discretion by excluding the tapes. The Short trial court refused on his quasi-entrapment contends on appea 1 that two instructions offered by theory of the case. He fundamental fairness requires an instruction on his theory that if he did exert unauthorized control over the trucks, he did so negligently ratber than purposely and knowingly and therefore he was not guilty. The instructions must be viewed as a whole to determine whether the defendant was limited in fairly presenting his theory. State v. Graves (Mont. 1981), 622 P.2d 9, 16. 203, 210, 38 St-Rep. The jury was instructed that the State had to prove each and every element of the crime by evidence and beyond a reasonable doubt (No. 2); that an element of theft is the state of mind of "purposely" or "knowingly" (No. 10); and that another element of this offense is that the defendant must have the purpose of depriving the owner of the property (No. 10) . The jury was given the definitions of "purposely" and "knowingly" (No. 5). The jury was instructed on "mere passivity or negative acquiescence" and "mere presence and f a i l u r e t o d i s a p p r o v e o r oppose t h e crime" (No. 1 3 ) , and t h e e f f e c t of defendant's possession of s t o l e n property (No. 1 7 ) . The c o u r t g a v e a " d u r e s s o r c o e r c i o n " i n s t r u c t i o n (No. The proposed instructions at issue merely 19) present . his argument o r t h e o r y t h a t h e d i d n o t have t h e r e q u i s i t e m e n t a l While a d e f e n d a n t i s e n t i t l e d s t a t e t o commit t h e o f f e n s e . t o h a v e i n s t r u c t i o n s on h i s t h e o r y , 147 Mont. 325, arguments in Deaconess 493, 413 P.2d those 509. We fundamenta 1 hold (1978), that fairness Hunsacker 179 Mont. the nor Thomas (1966), he i s n o t e n t i t l e d t o p u t h i s 315, instructions, Foundation S t a t e v. 305, 333, was Bozeman denied defendant the v. opportunity to 588 ~ . 2 d neither present his theory t o t h e jury. Short requested denied full n e w t r i a l on t h e b a s i s t h a t he was a confrontation the new the evidence a t t h e t i m e o f t h e h e a r i n g on t h e m o t i o n f o r new made that Simmons, presented Simmons basis of above, showed on impeachment discussed trial and and statements after d e m o n s t r a t i n g t h e t e s t i m o n y h e g a v e was f a l s e . Greeno forth ( 1 9 5 9 ) , 1 3 5 Mont. rules governing 5 8 0 , 342 P.2d the granting of trial I n S t a t e v. 1052, t h i s Court set new trials ground o f newly d i s c o v e r e d e v i d e n c e a s f o l l o w s : " ( 1 ) T h a t t h e e v i d e n c e m u s t h a v e come t o t h e knowledge o f t h e a p p l i c a n t s i n c e t h e trial; ( 2 ) t h a t it was n o t t h r o u g h want o f d i l i g e n c e t h a t it was n o t d i s c o v e r e d earlier; (3) t h a t it i s s o m a t e r i a l t h a t i t would p r o b a b l y p r o d u c e a d i f f e r e n t r e s u l t upon a n o t h e r t r i a l ; ( 4 ) t h a t it is not cumulative merely--that i s , does n o t speak a s t o f a c t s i n r e l a t i o n t o which there was evidence a t the trial; ( 5 ) t h a t t h e a p p l i c a t i o n must be s u p p o r t e d by t h e a f f i d a v i t o f t h e w i t n e s s whose e v i d e n c e i s a l l e g e d t o h a v e been its absence newly discovered, or a c c o u n t e d f o r ; and (6) t h a t t h e evidence must n o t be s u c h a s w i l l o n l y t e n d t o impeach t h e c h a r a c t e r o r c r e d i t o f a 1 3 5 Mont. w i t n e s s . I' ( C i t a t i o n s o m i t t e d . ) a t 586, 3 4 2 P.2d a t 1055. on the The trial court reviewed the new evidence, a tape r e c o r d i n g o f a n Oregon a t t o r n e y ' s i n t e r v i e w w i t h Simmons, and h e l d a h e a r i n g o n t h e m o t i o n f o r a new t r i a l on May 2 1 and May 24, 1984. A t t h a t hearing, the trial c o u r t adopted t h e S t a t e ' s r e a s o n i n g t h a t t h e e v i d e n c e was n o t s o m a t e r i a l . t h a t it would h a v e p r o d u c e d a d i f f e r e n t r e s u l t ; t h e e v i d e n c e was c u m u l a t i v e a s o t h e r impeachment e v i d e n c e ; and t h a t t h e r e was o t h e r s u b s t a n t i a l e v i d e n c e of Short's guilt. h a s n o t shown any e r r o r i n t h i s r e a s o n i n g . The d e f e n d a n t W e hold t h a t t h e D i s t r i c t C o u r t d i d n o t e r r by denying S h o r t ' s motion f o r a n e w t r i a l . on t h e b a s i s o f newly d i s c o v e r e d e v i d e n c e o r on t h e
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