*1
MONTANA,
DON-
STATE
Respondent,
OF
Plaintiff
Appellant.
ALD FLAMM, No. 12582.
17, 1974.
Submitted June
Sept.
1974.
Decided
MR. CASTLES JUSTICE ion. Jr., argued, for defendant and Stephens, Billings, L.
Robert appellant. Beers, Helena, Thomas Woodahl, Atty. Gen., J. L.
Robert County Hauser, Harold F. Atty. Gen., argued, Helena, Asst. Atty., Deputy County ar- Atty., Billings, Bradley, A. Charles respondent. Billings, plaintiff and gued, Opinion MR. delivered the of the JUSTICE HASWELL Court. manslaughter by jury verdict in
Defendant was convicted of County. appeals from now the district court of Yellowstone He judgment of conviction. Flamm, Roger Clement, Defendant shot se- Donald J. Jr. curity Char-El guard Billings, for the Mobile Homes sale lot 4:00 Christmas shooting Montana. The occurred about a.m. on Billings morning, 1972, quarter on less than a South Boulevard days Char-El died 18 later mile south of sales lot. The victim gunshot from wounds. The degree murder. charged first
Defendant in- an trial that defendant committed throughout contended ad- killing Defendant premeditated with malice. tentional and shooting self-defense. but claimed mitted the are mirrored conflicts the evidence principal The State, Yocky and Al Vickery for the Fred B. for the defense. defendant security nearby guard for the Premier Mobile was a
Vickery Homes lot. testified that when at the sale He he arrived scene shooting, struggling three men in front of the head- were lights of wagon parked station feet Clement’s some ten behind Volkswagen. suddenly men defendant’s “sort three apart” taking exploded steps with Clement two or three backward with empty upraised. his hands Defendant shot pistol with a range, Clements him around spinning close right. then shot Clement twice more the back. ground. Clement fell to the
Thereupon, pointed pistol defendant the direction of Vickery, sitting parked pickup. who was behind wheel of his Vickery Defendant shot at Yocky, twice. Defendant and Al companion, jumped Volkswagen then into defendant’s proceeded Billings south South on Boulevard.
Vickery pursued alongside pickup. pulled them his He bumped it Volkswagen and from the side without result. The Volkswagen third time knocked the off the road disabled it. Defendant and *3 fled on foot across a field to the west. Yocky
Defendant and a had different version of shoot- the ing. testimony Clement, Their indicated that unknown and un- identified, stopped them and asked defendant for his driver’s got Volkswagen searching license. Defendant out of his and was through his wallet for his license. driver’s Clement then hit de- fendant, glasses. knocking off his At the same time Clement pulled gun gun on defendant. Defendant tried knock to the hand, reaching at the from Clement’s same time into Volks- wagen pistol by pulling his own A struggle and out the barrel. pistol discharged accidentally. ensued. Defendant’s Defendant thought “just shooting”. dead he was and started pickup right
Thereafter drove his at defendant at- stepped him. to run over Defendant tempting aside and fired Vickery’s at windshield. commotion, and resulting
In the defendant got into Volkswagen proceeded and south on South Billings defendant’s by pursuing They Boulevard. were rammed several times They Yiekery pickup. on foot. stopped fled across a field and appeal, On trial. defendant a new He contends seeks procedural rights three errors affected substantial de- (1) him fair offi- prived police of a trial: admission of a cer’s testimony gave warning” that he defendant “Miranda rights improper thereunder; (2) defendant exercised his by rebuttal testimony principal and, (3) witness; State’s improper argument by prosecutor. final special
During case-in-chief, following testimony the State’s was elicited from Officer Billings Kenneth Nordlund of the Department on Police direct examination the State: “Q. you through went procedure After [giving this Miranda to warning did the say what Defendant to defendant] you? A. He stated that he not want talk did to to me this time, lawyer that he wanted to talk to any quesions before phrase was asked.” [Bracketed added.] objected improper bring that it was to before the indicating testimony not want to the he did to talk
police inferentially something it indicated that he because had judge objection to hide. The district overruled the and ad- testimony. testimony mitted the The basis was that the “has a bearing question respect on the of voluntariness with waiver those instances did waive.” where he In case, the instant hold the the context of we admission of be error. The relates to conver- police sation between a officer the defendant that occurred p.m. day. around 8:00 on Christmas The trial is barren record rights defendant of Fifth waiver Amendment *4 equally any subsequent statement, thereafter. It is barren of admission, or confession the defendant. circum- Under such stances, testimony the relevance to issue in the case lacking. is majority opinion in Arizona,
Footnote 37 of the Miranda v. 132 10 A.L.R.3d 694, 720, 16 436, 1602, 86 L.Ed2d
384 S.Ct. U.S. language: 974, prohibition explains the this impermissible it to today, “In is our decision accord exercising his Amendment penalize Fifth an individual for interrogation. The police he privilege when under custodial is therefore, trial that he prosecution may not, at the fact use of accusation.” privilege stood mute or claimed his face omitted.) (Citation applicable here, Supreme prohibition the U.S. this is
While
regarded
held
constitutional error
be
Court has also
that a
can
“beyond
proves
doubt
as
the
reasonable
harmless
State
complained of did
the verdict
that the error
not contribute to
18,
824,
Chapman California, 386
87
17
v.
U.S.
S.Ct.
obtained.”
1065.
705, 24 A.L.R.3d
L.Ed.2d
passing
there was mere
reference
the State’s
Here
rights.
the defendant’s exercise of
constitutional
witness to
attempt
pursue,
emphasize,
no
to
further
made
or
State
testimony
argument
jury.
Fur
its
even refer to
thereby
fully
the defendant testified
over
trial,
thermore
might
coming
which
any significance
have attached
interrogation.
respond during
to
the custodial
failure
overwhelming
support
Finally,
the record contains
evidence
circumstances,
the error was
jury’s
of
verdict. Under these
grounds for reversal.
therefore cannot be
United
harmless and
(9th
1973); Shepp
472 F.2d
Faulkenbery,
Cir.
States v.
Geter,
v.
563;
484 P.2d
R.I.
State, 87 Nev.
v.
274; People Key (Colo.)
We provides: It ease. proof criminal order of the case may then re- parties [after defense] “The
133 court, for only, unless spectively offer rebuttal original upon their to offer evidence good cause, permits them added.) phrase (Bracketed case.” only after testify permitted court the district
Here a re- not be testimony would chambers, that the determining, re- given The direct given earlier. peat of that negating transcript, thus only page buttal a of covers testimony. Vickery’s earlier emphasis possibiliy undue of of per- its discretion clearly did not abuse court The district 421 148 Mont. testimony. Crockett, 402, v. mitting such 1940). § (3rd 1873 ed. Wigmore, Evidence 722; P.2d 6 of remarks made final claim error concerns Defendant’s argument. Defendant claims state’s final during and class appeal prejudice to social that these remarks in the offer conclusions not founded evidence. references to defendant’s association
The remarks concern “dregs socity” drug and the culture. Our review of these remarks were harsh indicates that while record they supported were probably defendant, offensive to the by therefrom. and reasonable inferences evidence shooting, discloses at the time of the defend-
The record
company
just
ant
man who
was
of Al
had
been
—a
pending
imposition
possession
released
deferred
of sentence for
drugs.
trial,
At the time of the
defend-
dangerous
sale of
custody
drug
on a
ant’s brother was
same courthouse
charge. Defendant
enroute to this brother’s home at the
shooting
testified
occurred. Defendant
that he had
time the
“dope
of the
scene”
been threatened
members
because of
his brother.
debt owed them
were
evidence,
surely
the state’s comments
founded
G-iven
testimony,
not
inferences from the
from the
on reasonable
infringement
right
find no
substantial
We
testimony itself.
no reversible error.
accused, and therefore
State Wat-
134
As United Supreme recently States Court said: * “* * require the law not does a defendant receive * # perfect trial, Tucker, only a fair one State v. ...... U.S ......., (1974). S.Ct. L.Ed2d 182 here demonstrates that defendant a fair record received Accordingly, trial. the conviction of the defendant is affirmed. ME. DALY and HARRISON and The JUSTICES JOHN C. *6 SORTE, Judge, sitting M. HONORABLE JAMES District HARRISON, T. MR. CHIEF JUSTICE JAMES concur. (specially concurring) MR. JUSTICE CASTLES : agree any not concur the result but do error oc- I agree on issue No. 1. I error occurred it curred was harmless.