*1
MONTANA,
Respondent,
The STATE OF
Plaintiff
Appellant.
ARMSTRONG,
HAROLD
Defendant
No. 14797.
25, 1980.
Submitted March
Sept.
1980.
Decided
*3
256,
Mike ChrisD. Greely, Asst. argued, Gen., Helena, Hanser, Harold F. Atty. County Atty., Billings, Bradley, Charles argued, Deputy Atty., Billings, County plain- *4 tiff and respondent. the of Court. SHEEHY delivered the opinion
MR. JUSTICE a in Yellowstone Coun- This is from entered appeal judgment Court, a verdict Harold Arm- ty jury finding District pursuant homicide and robbery. of the crimes of deliberate strong guilty a we will the facts have been set forth in prior appeal, Although iterate them. briefly 22, 1975, the of
At 8:00 a.m. on January body approximately a in a alley. was found in boiler room located Lynn Billings Lords neck, stab in Lords’ back and chest. There were wounds multiple a The was to be due to massive blood cause death determined in loss from the the neck. wound at the
Lords in a game Crystal Lounge had participated poker 21-22, 1975, until about January on Billings previous night, $400. at time when he cashed in valued about Harold chips closing no same but cashed in game Armstrong participated poker $30 at more than the end game. worth chips and Lords entered the separately ear- Crystal Lounge on ly January men Both left and apparently separately a.m., different exits at about 2:00 January 1975. When Arm- entered the strong establishment he was a blue coat a wearing and gunbelt holstering pistol sheathing hunting knife. Arm- belt, checked the strong gun knife at the bar. He later gave pistol to a Crystal employee for loan of security money. was pistol however, never returned to him. He did his knife pick up and belt. a.m., after 2:30
Shortly January Armstrong drove vehicle to a service station in He Billings. requested attendant perform certain work repair van. Armstrong cleaned his vehicle and washed the floor mats and a pair boots while attendant worked on repairing vehicle. While for paying cash, work in repair the attendant noticed large amount of money in his wallet.
On afternoon January arrested shoplifting blue coat from store in Billings. investiga- tion relating arrest shoplifting led to the eventually charges involved instant case. *5 15, and on convicted subsequently charged April
1975,
one count of rob-
one count of deliberate homicide and
a
He was
to one hundred
bery,
years
trial.
sentenced
following jury
and
terms
be served
forty years
respectively,
imprisonment
20, 1976,
af-
On
this Court entered its
consecutively.
July
opinion
256,
judgment.
firming
been denied effective an order granting the United States District Court issued or within writ that released retried and directing the District Court by pending This order days. stayed ninety for the United States Court of On appeal. August Appeals and the District Court order dismissed the Ninth Circuit affirmed 18, 1978. order effective stay September A 1978. Prior second trial was commenced on November 16, 1978, the Court entered this trial on November District second use trial testimony an the first order the State’s motion denying However, on November Strobbe. Lynn Helmey Jo for an to the State’s petition issued order response Court control, “the to ex- District Court directing writ of supervisory and make a deter- the previous testimony amine the transcript fact the witnesses on whether in mination based the record [as to] cross-examined, that determina- and based upon were effectively tion, admit deny proffered shall be in or writing, admitting Court made order District testimony.” counsel adequately on its finding prior based transcripts the witneses. cross-examined returned verdicts jury guilty
On December to those im- received sentences identical both counts. Armstrong trial, for i.e. one hundred deliberate at the first years posed consecutively. be served homicide robbery forty years This follows. appeal for review: issues are following presented
(1) Is the verdict by substantial supported evidence?
(2) Did the District Court err by the motions to denying suppress on an based alleged illegal search and seizure? (3) Did the District Court err denying motion for appellant’s of venue? change (4) Was the appellant denied trial? speedy (5) Did prosecutorial misconduct trial? deny appellant fair (7) Did the District Court err permitting impeachment of defense witness by the use of inconsistent prior statement alleged- ly made the witness?
(8) Did the District Court err by and admitting excluding various items of evidence?
(9) Did the alleged inadequacy the autopsy report deny a appellant fair trial?
ISSUE NO. 1: OF SUFFICIENCY THE EVIDENCE
The rule is well if settled that substantial credible verdict, evidence exists to a it will support stand. State Bad Horse A 1119. defendant must be convicted on evidence that allows the to find a beyond jury reasonable doubt that he is and a guilty, verdict cannot be based upon strong probability, justifiable or suspicion, shrewd conjec that ture he is State v. guilty. Konon Mont. 274 P. 1060; State v. P. Cooper
Here contends that the circumstances and Armstrong inferences adduced from State’s evidence are not sufficient to find Arm- beyond reasonable doubt. strong guilty His contentions include these:
(1) a.m., was There not sufficient time between 2:00 when the a.m., car dealer testified that left the until 2:30 appellant lounge attendant, when the service station he night testified at appeared station, deceased, the service for to murder the stuff the him, in the boiler body room after walk three blocks to his robbing vehicle, drive to remote location on road off main Billings clothes, victim’s wallet and his own hide the
thoroughfare, Station; to the return Standard
(2) which gloves admitted were not The gloves Big testified were purchased by witness Ibach 1974; Timber November
(3) his gunbelt evidence that Armstrong dyeing The 22, 1975, in to cover bloodstains alleged holster on order January Finch Donald testimony is refuted speculation homicide; prior that he had been dyeing gunbelt (4) boot was on left The of blood drop microscopic was not found on boot and the bloodstain not from deceased examination; on first
(5) with shirt not consistent hair on the pubic appellant’s his due jacket had discarded the State’s theory condition; have up he have zipped his would blood-soaked shirt, which had no did on his so that the blood jacket get his it; trace of blood
(6) of the sack containing found in debris hair pubic as was hair it impossible pubic is also not plausible left boot a shoe boots located in be transferred the deceased to from occurred; at the time the offense Billings store in downtown wallet (7) the victim’s not have hidden could 22, 1975, because Parsons of January early morning culvert in the *7 walked ditch regularly the wallet he discover although did not 4, 1975; it May was not seen to prior it found and had where (8) that he could knife show of Armstrong’s The measurements wounds deceased. upon have inflicted the is isolate in- is that to Armstrong’s approach The State’s response to theories con- dividual of evidence and pieces identify speculative with innocence. sistent most, all, evidence if not in this case that
It is true However, circumstantial is circumstantial. Armstrong against as to determination quality. inferior always evidence not a for the to make case of circumstantial sufficiency and to sustain a is one jury conviction to be made all the facts upon and circumstances which are to taken into consideration col- (1941), State lectively. v. DeTonancour P.2d
In to addition circumstantial evidence foregoing pointing toward the defendant were Armstrong, there other factors for motive, or jury consider. The defendant had because he had little no on was 1975. When he arrested on money January January 22, 1975, he had $319.02 $100 in cash bill. He had including $100 spent another bill earlier in the showed that day proof the victim had 100$ two bills on his his possession shortly before death. left bar within minutes of the was victim and next seen 30 to 35 minutes at later 1.2 miles point approximately from the at Crystal Lounge the Standard Station boots. washing The victim’s wallet found with a of trousers pair identified Finch, sister, as Peggy Armstrong’s Blood- belonging Armstrong. stains were found on several items In belonging Armstrong. November purchased pair similar gloves to the blood soaked gloves which were found at the scene of the crime. did not which he produce gloves purchased in November to refute the contention that the blood soaked gloves were in his. A fact similar in bootprint size configuration sole of boot was found in the boiler room where the was found. body day after the apprehended committed, crime was similar to one stealing jacket he had worn the night before.
In their collective are weight, these factors consistent with his guilt, and inconsistent with his innocence. We cannot therefore fault the verdict based jury evidence. test evidence in convic sufficiency criminal
tion is whether there is relevant evidence which persons reasonable minds might conclu accept adequate support (1979), 1125; sion. State v. Azure 181 Mont. 591 P.2d v. 691; 179 Mont. v. Pendergrass State Merseal 1366; 538 P.2d State Cor *8 416 323, relevant evidence here meets that test
Mont. 396 P.2d of as far this conviction concerned. sufficiency 2; ISSUE NO. AND SEARCH SEIZURE were There four searches in this cause. On 22 and January 28, 1975, warrants were of issued search January authorizing 22, 1975, trailer home and automobile. On Armstrong’s January arrest, a warrantless search of day Armstrong’s inventory 28, 1978, wallet conducted. On November war- rant was issued search of He con- body Armstrong. authorizing here four tends that all searches were and that evidence illegal, obtained from these have been searches should suppressed. 28, 1975 22 and January Warrants January
Search all Court suppressed District November On January search warrants issued obtained under the 28, rel. was based on State ex 1975. The order January Sanford in- (1976), 170 Mont. P.2d v. Court Dist. this Officer of Peace “any warrants directed validated search action this Court for brought the State State.” Thereupon Court order. to the District control supervisory relating writ of (No. v. Dist. Bradley rel. Charles A. Court Montana ex State of 29, 1978). This accepted jurisdic- Court Decided November writ, the order suppressing reversed tion of petition should not applied that evidence on the ground Sanford the reversal of this Court justices signed Three retrospectively. concurred, fourth, upon opinion, A the author order. reservation, the propriety applying other things, among subsequent ap- be considered on any could retrospectively Sanford peal. Peace warrant Officer” “any
Until
search
directed
Sanford,
statutes. This Court
violation of
created technical
governing
warrants issued
evidence seized under
had refused to suppress
war-
who
for the
if it was executed
officer
applied
that style
1204;
State
rant.
v.
168 Mont.
State
Snider
1158;
v.
Meidinger
P.2d
Tropf
160
In
case,
assuming
jurisdiction
control
the ma-
supervisory
of this
jority
Court decided that it would not
rule
apply
Sanford
(1966),
719,
here
v.
retrospectively.
New
U.S.
Jersey
384
Johnson
86 S.Ct.
In v. State 178 LaRoque Mont. we P.2d stated a test to three-part determine whether decision be should applied retroactively:
(1) The decision must establish new of law overrul- principal relied, established on which have or ing precedent it must litigants decide an issue of first the resolution of which is impression, not foreshadowed. clearly
(2) The rule in must question be examined to determine whether the threat of will further or retard its application and operation;
(3) The of retroactive must be equity considered. application that the Assuming rule was foreshadowed in clearly Sanford earlier and decisions that its retrospective would force application to prosecutors their forms tighten war- procedures securing rants, hurdle, the defendant must still make the third whether the of retroactive equity favors him in application his case. rule was intended by this Court to support Sanford
improve the
integrity
fact-finding process. Here retroactive
application of the
rule would exclude relevant and reliable
Sanford
evidence from the
We do not find
jury.
that
interests of justice
Moreover,
require such result.
does not favor
equity
retroactivity
here. Both the courts
the search
issuing
warrants and the police are
entitled to rely on the rules in
at the
effect
time the search warrant
is issued. State v.
rule in this warrants, case because to do so would vitiate the search and the evidence found them. through “law of the case” to by
We have been the State urged apply rule, Inc. Elec. Cooperative, Fiscus Beartooth fact that the order In view of the case. cause was divided in the related control granting supervisory court, a full again appeal by reviewed this matter we have court, that San- application determined retrospective- have be adverse of the case and would required by equities not ford the interests of justice. however, January further attacks the warrants adequate- not that do upon they and January grounds seized, and the things describe the be searched ly places and that they court identify issuing do they sufficiently are not cause. supported probable *10 sup- We look first at the cause contention. The affidavit probable 22, 1975, issuing of informed the the warrant porting January early morning Lords had died in the court that: Richard Lynn 22, 1975, stab wounds by apparently hours of January multiple knife; a had shown that Lords had been made by investigation and a.m. at the had left about 1:30 Crystal Lounge poker playing 22, 1975; his two of he had in possession on the morning January bills; had been identified as playing $ 100 Harold Armstrong victim; checked time the had Armstrong at about the same game the time of his a knife with the bartender at a revolver and hunting awas and had hocked the gun loser entry in the game; in any did not cash the money game; Armstrong for continue to him of and the knife returned game at the end the chips bar; at 3:30 he left the on the same day p.m. when he had in for shoplifting; the by police department arrested Billings bill, and $199.07 in bills $100 a an additional possession plus it; on and Armstrong have blood $5 one bill change; appeared shoes; when arrested and a blue levis bluejacket, had been wearing boots, and jacket. tan no was wearing cowboy he for the application search warrant in- January a cluded recitation of the facts and in addi- foregoing essentially, tion thereto recited that further investigation by police turned a a witness from at up Standard Service Station who 2:35 a.m. on the of the victim’s death observed morning Armstrong go boots, to the washroom where he washed off and pair green floor mat plastic from vehicle he was driving. facts, on
Based
these
courts
each case issued a
alleged
warrant,
search
January
described Chevrolet
van
and trailer home where
had been
staying,
van,
other for
further
search of
Chevrolet
also described. Our
examination
applications for
search warrants show that
contain
they
sufficient facts to enable an impartial
magistrate
determine whether
cause
probable
existed under the Fourth
cause,
Amendment. In
we do not
judging probable
require that the
issuing magistrates
confined
limitations or
by “niggardly
by
restrictions on the use of common
sense”
the determination of
cause
probable
magistrate
great deference
paid
ap
court. State
rel.
pellate
ex
Garris v. Wilson
We therefore hold that the warrants 22 and January 1975 were issued and validly met the fully legal requirements for Therefore, the issuance. the motions of suppress *11 evidence thereunder acquired were properly by denied the District Court.
We now look at the search of inventory January This was of the date arrest for an inven- shoplifting. During search, the tory $100 Police seized Billings bill from his wallet. The attack on this item is that the search inventory $100 from the bill should suppressed
was and therefore illegal the evidence. schedules are for bail bond is a misdemeanor which
Shoplifting refused arresting The officer County. in Yellowstone established custody. Arm- bond and kept the scheduled accept allowed to bond. post should have been now that he argues strong have been returned and its contents would In that his billfold way, was when he released. him However, was knew that he arresting Armstrong officer cir the time. In that at 'a Lords’ homicide major suspect bond, cumstance, to refuse bail had not only right the police (1967), 37 Ill.2d him. but the to detain duty People Cocroft 16, 19. 225 N.E.2d $100 turned up search of inventory 46-5-101, arrest, wallet, section was incident to lawful in his
bill seized, as MCA, is admissible lawfully was since the bill as well the of- or proceeding other any prosecution 46-5-104, was made. Section originally fense for which search MCA.
We now at look the contentions search warrant relating that 1975. On date search warrant issued January the seizure of hairs from He con- authorizing pubic Armstrong. self-incrimination, tends that the seizure violated his right against violated his due that the search was process rights again based cause. upon probable concedes the search comes within body It requirement.
ambit of the Fourth Amendment warrant contends however, facts in the ample supported finding application The affidavit for magistrate. cause probable issuing of an witness at Arm testimony expert search warrant recounts be established connection testimony first trial. That strong’s hairs and the homicide by comparison pubic tween Armstrong asking and the victim Lords. The State of the fact that the hairs hairs because warrant seize additional consent, and counsel’s trial been with used in first obtained *12 the federal court had determined that had been rendered ineffective assistance at his first trial. The hairs at the first trial to tended connect the defendant with the victim and the crime. The court found cause and probable issued the warrant. We that agree probable cause existed as the affidavit in application therefore set out sufficient facts to disclose the value of evidentiary hairs. pubic
The due claim process of is that it improper issue the search warrant after attached. jeopardy novel, is claim and no is cited in authority connection with this contention. if Perhaps, prejudice the defendant has oc curred warrant, virtue the issuance of the search some due process rights defendant have been might offended. Here however, the court was careful to offer such additional time to the defendant as he might need to meet that any testimony might with given respect seized newly pubic hairs. No is prejudice otherwise out pointed in this appeal.
As
as
far
nature of the
self-incriminatory
seizure of
concerned,
haris
pubic
issue was
decided
Schmerber v.
757,
1826,
384 U.S.
86 S.Ct.
ISSUE 3: NO. CHANGE OF VENUE motions,
In pretrial of venue and the change sought anof appointment independent pollster. The venue change were demanded on the pollster basis of prejudicial pretrial publici- The motions were ty. by defendant’s supported affidavit reciting the existence of news pretrial coverage, accompanied by copies the news articles Gazette and also an affidavit Billings of his counsel which recited that he had heard numerous comments from who had formed an persons to the defendant’s opinion guilt. affidavit Counsel’s further stated that a scientific poll would disclose widespread The court heard prejudice community. on the motion to on November pollster argument appoint and denied same on November 1978. The court heard on the venue motion on November argument
denied that motion on November On November both motions were renewed on basis article on that date Gazette. appearing Billings mo- of the renewed court heard and argument support *13 22, the the for tions on November court denied motion Again on the venue motion pollster, ruling and reserved opinion pend- was denied dire of the The venue motion jury panel. voir ing voir dire. following motion, he contends that
With
respect
pollster
law,
that a
been
of the
alleging
pollster
has
denied equal protection
and to
of venue
change
to establish the grounds
necessary
that the denial
assess the existence of
and
prejudice
county,
to an
defendant
unconstitutional.
indigent
pollster
because the
We
the denial of the two motions together
discuss
(Iowa 1979), 285
noted in State v. Williams
issues intertwine. As
248, 266,
with
defendant overstates the problem
N.W.2d
whether the trial court
to the
pollster.
question
respect
where,
in a
to avoid
tried
being
county
denied him
means
material,
dissemination of
prejudicial
because
potentially
fair
could not receive a
was a
likelihood that he
there
reasonable
(Idaho
Williams,
v. Powers
and see State
trial. State v.
supra;
96
1975),
423
cert. den.
U.S.
96 Idaho
537 P.2d
881,
We with procedure agree examination that the voir dire indicated has not Court. him against opinion any prevalent disclosed jurors of prospective members, nor over any the panel or among the community aside. could not put jurors prospective riding prejudice through words, Armstrong, here gave District Court In other voir counsel, through and expose, out dig the opportunity would have examination, prevented or prejudice bias any dire not did dire examination The voir the defendant. a fair trial of reveal such any The court therefore had prejudice. denied properly the motion for an at county opinion survey expense.
The voir dire examination here failed to reveal such bias or
as
a fair trial
prejudice
prevented
for the defendant or made his
counsel ineffective. As
representation by
to the motions for change
venue,
indicia
“undue
identified
State v.
prejudice”
Board
do
appear
(1)
here. Those were identified as
aroused
in the communi
feelings
(2)
defendant, (3)
threat
ty,
to personal safety of the
established
of members of
opinion
as
community
of the ac
guilt
cused, (4) news articles beyond the
of news
objectivity
and
printing
dissemination,
(5)
or
difficulty
failure
fair
securing
case,
In
jury.
partial
the defendant submitted news articles
which show extensive publicity, but do not
show editorializing
of the media or
part
any calculated
attempt
prejudice public
opinion against him or to
the fairness of
destroy
the pool from
which his prospective jurors would
drawn.
We have no indica
tion here that the published accounts were so
passionate
to excite
undue
prejudice against the defendant. State v.
Logan
833;
Mont.
P.2d
Hanrahan v. District Court
Relying Groppi Wisconsin 400 U.S. 91 S.Ct. 490, 571, 27 L.Ed.2d asserts that this Court must apply statutes, venue involves since proper to the contested scrutiny
strict However, has of due process. the minimum standards him impartial venue denied the failure to change not shown a fundamental of to show the impairment he has failed Since jury. the constitu- basis” test to determine the “rational we apply right, for of orders on motions of the appellate procedures tionality of venue. change is has no right appeal
The answer The State simple. Therefore, the allowance acquittal. a conviction or following review of orders respecting State of an interlocutory appeal trial, serves a purpose, to conviction or acquittal, place prior interest be in the criminal handling that the public protected is a rational basis for these provisions cases. There appeal statute.
Moreover, the difference between the State the issue respecting instant case was not defendant as in this right and the appeal We not review it See upon appeal. raised at the trial court level. do 448, 564, 379 U.S. S.Ct. Henry Mississippi 567-568, 413. 13 L.Ed.2d 4: NO. TRIAL AND LATENT BOOTPRINT
ISSUE SPEEDY to a has been his trial right public maintains speedy denied. determinations,
In to be trial one factor considered speedy is the length Harvey trial. State v. delay There no need to other factors is examine has unless there been some deemed delay presumptively prejudicial. the length should determine this Court asserts the time from his one half years, to be about three and
of the delay is un The assertion second conviction. conviction original from the time period We will not consider supportable. until remittitur to this Court notice of appeal initial from May Circuit Court Appeals, issued from the Ninth within the included time is not 1978. Such 1975 to August the Mon- that period, delay. During of a trial speedy computation *15 tana District was without Court to jurisdiction engage pro- ceedings to retrial. v. Ward leading 120 Ariz. 586 P.2d 976-77.
After
the time
which this cause was in the
subtracting
during
ap-
courts, the
is not
pellate
period
delay,
days,
long enough
be deemed
is much
presumptively prejudicial.
length
delay
shorter than for
v. Crist
example, Fitzpatrick
a seven-month
case.
delay
The Bootprint Argument
claim,
As an
ato
trial
adjunct
defendant contends
speedy
that the
bootprint photographs
should have
transparencies
been
under the rule
suppressed
Brady Maryland
U.S.
83 S.Ct.
At the time of the Lieutenant Aukshun had taken a Polaroid of the floor area of the boiler photograph room which Later, the victim’s was found. in the body at- paralegal county office claimed to discern a torney’s in the but bootprint photograph it was not introduced at the first trial. trial,
After the first and in the photograph enlarged, lost, process original were but photograph enlargement Polaroid negative original retained photograph When the photographer. Federal District Court case judge evidence, ordered the to him of all was in- delivery photograph excluded in the evidence advertently delivered to court. trial,
Prior to the second the State moved to endorse witnesses who could with persons testify respect photograph, motion was the trial also granted by authorized judge. judge aof for the defendant to employment photographic expert
evaluate the and the ex- photograph photographic procedures. travel to Great Falls at to view expense allowed to State pert of the which were preparation enlargement transparencies later introduced at trial. of the is that the admission photographic contention v. Brady under discovery duty
exhibits violated State’s Maryland, supra. trial, all to the second in the record that with respect
It appears with, and the evidence were complied orders respecting delivery on the defend- to allow the attendance of experts court went further defend- all material were delivered to the ant’s behalf and copies of the testimony days prior ant’s representatives eighteen to the photographs. State’s witnesses relating That is not in point. v. Maryland contends Brady of exculpatory by prosecution case dealt with suppression withheld and was not Here the evidence inculpatory evidence. 150, 153, Craig (1976), the defendant. State from with contentions in Armstrong’s We see no merit P.2d to the bootprint. relating the use of the photographs respect MISCONDUCT NO. 5: PROSECUTORIAL ISSUE are misconduct pointed Two instances of alleged prosecutorial reversal on the fifth allegation as out appellant grounds First, its stated part: the State in closing argument of error. doubt, but read reasonable beyond “The must be to you proof instruction, time we doubt. The only it doesn’t say beyond any with our own two You eyes. is when we see it are sure of something were, it, it, If taste it. You weren’t there. you smell and you feel you witnesses, than we have more you would be but given you an there is not eye murder case where will see in another you witness.
“ of the confused by language Do not be man is as sin. This guilty blood, trick, transfer of the accidental planting boot phony watch, hairs, of blood on money. planting of blood on planting him, him, the knife on on we didn’t plant the jacket We didn’t plant we didn’t plant money him in that game, we didn’t plant him.” 7-106(C)(3),4) of Profes- of the Canons Rule No.
Disciplinary on April Ethics which were Court adopted by sional states: court, a before a in his capacity
“In appearing professional shall not: lawyer
“(3) issue, Assert his of the facts in personal knowledge except witness, when as a testifying
“(4) cause, Assert his as to personal as opinion justness witness, to the of a credibility aof civil culpability accused; or as to litigant, or guilt innocence of but he may *17 evidence, in his argue, of the analysis or conclu- any position sion with to the matter stated respect therein.” this Court does not
Although of the approve State’s usage simile, of the above emphasized we do believe that when taken in context with the of the language remainder of the closing argument the cited jury, to be based the lagnguage appears upon State’s of the analysis evidence and is of the expression State’s within the personal opinion of the explicit purview rules. disciplinary
While cross-examining appellant, chalked in prosecutor blackboard, lines on the in the resulting following objection: “(Mr. time.) on chart at this Bradley writing honor, “MR. WHALEN: Your I to this Mr. object drawing is Bradley putting upon board for the reason that it amounts to a comment upon evidence and invades the of the province Court and is anot mode of jury, proper examination.
“THE COURT: I don’t understand the purpose drawing. Well, “A. he is lie on there. writing lie, times,
“Q. You did didn’t Mr. A. you, Armstrong? Many yes sir.
“THE COURT: sustained.” Objection
In addition to sustaining objection, the court submitted its jury instruction which informed the jury:
“Statements of counsel are not to be regarded by you will you such disregard any statements which are not sup- ported by evidence received this trial.” upon record,
From the it that what appears the prosecutor doing cross-examination of place chalkmark upon board with to each respect answer that he received from in such manner on the completion questioning, word “lies” or “liar” would appear on the blackboard. While this sort of conduct stretches our lenience to the extent, fullest we observe that the court moved to sustain quickly and later objection, to instruct the to remove jury any possible course, from the prejudice actions of the Of prosecutor. we cannot assume that the considered jury evidence to which were objections sustained, made and timely nor that the did not follow jury the in Therefore, structions of the court. we find no prejudice point.
ISSUE 6: NO. TESTIMONY THE FROM FIRST TRIAL asserts that the District Court erred in admitting first-trial testimonies of Strobbe who Lynn Helmey were not Jo available for the second trial. on this Appellant’s objection point that counsel at the second trial was forced to use the cross- examination of a who had been declared prior attorney inadequate law, as a matter of thus denying effective appellant assistance of counsel at the second trial also.
This was one of the issues which was to this brought control, Court’s attention in the petition supervisory we have In already adverted. our order on that making petition, of the majority court directed the trial court to examine the trial, of the transcript and if it prior determined therefrom that effective, cross-examination was indeed its use at the permit sec ond trial of The court amade that Armstrong. finding prior defense counsel had examined the witnesses. adequately Therefore, presents no error court’s finding regard. the order of the District such Court will stand. admitting testimony ISSUE NO. 7: PRIOR INCONSISTENT STATEMENT LaFleur, sister,
Florence testified on his behalf at trial. She stated on direct examination that defendant had lived with her husband and herself December 1974 and during January 1975. She testified that the trousers found with the victim’s wallet did not belong She also stated that the Armstrong. defendant liked to flash denominations large The final currency. point her went testimony nature of a wound in gunshot Florence Armstrong’s hip. LaFleur testified that the wound was in- flicted her husband. accidentally by
On cross-examination the State into inquired the circumstances Over shooting. objection, the asked prosecutor the witness whether her husband had ever stated in her presence that the wound was purposely inflicted. The witness “I don’t responded, know if before, he said that or not. I told I you was not listening them, I was nervous enough without to that listening officer and him The State talking.” later called Officer as a Knutson rebuttal witness who testified that LaFleur’s husband had indicated that the was intentional. shooting
The State concedes the error this admitting as in- testimony, consistent on the hearsay collateral matter. The State contends however, that no error prejudicial occurred from the admission of the testimony. contends that the allowance of the testimony LaFleur,
damages credibility established his character as a violent relies on person. Armstrong Chapman California 386 U.S. S.Ct. L.Ed.2d as requiring reversal unless the error can be declared harmless beyond reasonable doubt. the rule that rejected all federal constitutional errors
Chapman automatic required reversal of conviction. In State v. McKenzie stated: P.2d Court *19 430 determine, as we can the Supreme
“As far United States Court has not fashioned a uniform standard for harmless yet determining constitutional error SeeHarmless Error: beyond Chapman. federal Standard, Review, St. Law Vol. The Need For A John’s Uniform 1979, 541; 53, 3, The Harmlessness No. Spring p. Assessing of — Rationale, Constitutional Error A Process in Need Federal 1976, Review, Law December Vol. University Pennsylvania 2, 125, 15. three in appear No. At least definable p. approaches cases: Supreme United States Court “(1) on the evidence or con- focusing erroneously admitted other stitutional error to whether it have determine contributed might conviction, e. the v. 375 U.S. 84 g. Fahy Connecticut 171; S.Ct. L.Ed.2d
“(2) the constitutional where excluding infirmity overwhelming conviction, e. evidence v. Milton supports g. Wainwright 1; 407 U.S. 92 S.Ct. 33 L.Ed.2d “(3) whether the tainted evidence determining merely evidence, or e. cumulative admitted duplicates properly g., 89 S.Ct. U.S. Harrington California L.Ed.2d circumstances, feel of the three any we free to adopt
“Under such error within harmless federal constitutional standards assessing ...” the confines of Chapman one only applicable
We find first approach facts, we error of all the admitted in light case. Viewing present this particular doubt that the error in find reasonable beyond con not contribute to appellant’s was harmless because.it did case viction. indicated that
The collateral matter this case impeached only time been shot brother-in- at some prior appellant his sister. Whether his brother-in-law while in the law company or the shooting intentioanlly accidentally, had committed victim, making Armstrong amounted only based any feelings against could not arouse the jury or lack upon intention of intention of LaFleur’s hus- part band. We find therefore that error harmlesss.
ISSUE NO. 8: FURTHER EVIDENTIARY ERROR also error argues prejudicial occurred court either or items excluding admitting following *20 evidence:
(1) evidence. The State submitted evidence Shoplifting showing of the blue coat afternoon shoplifted light day that Lords was killed. contended it was error to admit evidence shoplifting because it evidence of a distinct and crime which was independent not admissible here and there was no evidence that the coat worn showing formerly by Armstrong been destroyed.
The evidence tended show the destruction or shoplifting suppression by evidence tended to show guilt and was therefore relevant and clearly admissible. If evidence tends to the commission crime it is prove of the not charged, rendered inadmissible because it also tends to the commis prove sion of another crime. The test is whether the relevant evidence is facts to an issue the cause tending prove any material before the court. State v. Cesar 72 Mont. 232 P. (2) Boots with the blood boots were admitted spot. Armstrong’s and the showed that was a there blood them. testimony spot upon The boots had been sent to the blood was separate FBI in No bags. discovered on the boots their initial examination the FBI. during Upon police, resubmission blood Billings spot discovered. these According facts Armstrong, affirmatively show a in the condition of the boots while in custody. change police it was asserts error to admit boots since proper chain of was not shown. custody Ross and officers Bruce and testimony police no one
the FBI established prima Semmes agent facie shown, with the boots. Once this was the burden tampered prov v. 165 shifted to State Burtchett ing tampering Armstrong. 471, 475; cert den. 420 U.S. found no blood 654. The fact that the FBI S.Ct. L.Ed.2d examined does not mean that when were they initially on the boots them; it means that the FBI did merely there was no blood on This is not proof tampering find the blood in the first instance. while in custody. police
(3) Clothes found in ditch near the These exhibits city dump. were; a shirt and Pendleton two of trousers found in ditch pairs error, on the road to the contends since the city dump. Armstrong State failed to establish the chain of Arm- adequately custody. contends that the State must show chain of strong complete from the time of Lords’ homicide until the introduction custody evidence, into and if a link in chain of possession missing, exhibit not be admitted. may of such the foundation for admission adequacy discretion, District and the is within the District Court’s absent a clear abuse of will not be reversed determination
Court’s 268-269, discretion. State Thomas 405, 407. P.2d *21 the chain of from custody established complete
The State introduced into until the clothes time of the clothes finding were mere to the finding The of tampering prior evidence. possibility to the clothes is not sufficient preclude Such conjecture. conjecture has not met into evidence. Armstrong from introduced being with that that some tampering affirmatively showing burden of Thomas, v. supra. evidence has taken State place.
(4) to Photo of latent In addition to the objections bootprint. the of the latent to which we have earlier photograph bootprint adverted, was to admit contends it error of Anderson the concerning and the Officer testimony photograph to the contends that the State failed prove bootprint. Armstrong was disturbed in- was taken before the crime scene by photograph officers. vestigating was
(5) when the established Testimony photograph identified as the contends he was not positively taken. Armstrong However, of source such need not be identity positive print. to order for the be admissible. in the identity print Any uncertainty or method of identification of evidence and weight goes not admissibility. its v. Robbins 21 Ill. 3d People App. 315 N.E.2d The was 203. foundation for suffi photograph cient. Lamb v. Page P.2d (6) to The court refused admit into jacket. Blood-soaked exhibit, a blood-soaked found in jacket was near the scene of the crime. The blood on the jacket hotel room “O”, was human the same that of Lords. The jacket type in a room. An revealed the discovered hotel Billings investigation weeks the Lords’ some six prior on the coat was deposited blood was inadmissible. Rule was not relevant homicide. jacket 402, Mont.R.Evid.
(7) of Cannon and Ross. Testimony In examination of two witnesses, Ross, rebuttal Cannon and the prosecutor repeatedly questioned them in such manner as to draw objections which were sustained by the trial court. The reasonable inference to be drawn from the was questions did have bank accounts in Hawaii and was not from Hawaii as he receiving money contends, earlier testified. purport questions, Armstrong an the existence imply crime on the independent part of bad checks. The Armstrong, writing jury admonished the rebuttal and Ross disregard testimony Cannon by District Court.
Misconduct prosecution may form basis for new trial where the prosecution’s conduct deprived defendant of a fair and Willful impartial trial. attempts counsel to place excluded evidence before result in a jury may reversal.
Bain
176
We determine the examination was not attempt place before the *22 the facts jury which could assumption damaging Rather, the was an the proven. questioning attempt by prosecu- When within an rule. exception hearsay objec-
tion to fit tion, the the discovered that it could not so interrogate prosecution witnesses, such examina- refrained from further prosecution tion. We find no incidents. prejudice (8) as to issue is of fact remaining question Autopsy report. knife blade consistent whether the measurement of appellant’s report with the measurements found autopsy concerning stab contends that the length decedent’s wounds. width, evidence, to and not sufficient blade on the knife in its are the decedent’s with the of the knife wound found in comply length is, however, the function of the jury the width. It exclusive body or witnesses, resolve con- credibility evidentiary determine flicts, as it such to the evidence deter- may and to assign weight 1127; (9th 1978), mine. Cir. 579 F.2d United States Brady (1974), 165 Mont. State v. Glidden it that was Although argues impossible knife inflict the wounds found on the deceased evidenced knife, and of the measurements wound respective marks, jury lack of hilt these are factual arguments determined. is affirmed. of conviction
Judgment HASWELL, DALY MR. MR. CHIEF JUSTICE JUSTICE Shea, MELOY, for Mr. sitting Judge, District PETER G. Justice concur. HARRISON concurring:
MR. JUSTICE concur, is classic case wish to note that my opinion I but habeas system erroneously granted in the federal where one judge hearing, at federal introduced testimony The medical corpus. at introduced testimony pathology when matched by expert of considera- trials, testimony worthy as expert fails to qualify both aAs the state. introduced by the evidence tion overcoming trial, in result, my opinion, second put costly state has been needlessly.