*1 168 MONTANA,
THE STATE Respondent, OF Plaintiff v. Appellant. GRADY, JOHN No. 12785. 17, 1975. Submitted Jan. 7, Feb. 1975.
Decided 681. 531 P.2d *2 Adams, (argued), Billings, John L. for defendant and Jr. appellant. Budewitz, Woodahl, Atty Gen.,
Robert L. Asst. Thomas Atty. Atty., Gen., (argued), Hanser, County Helena Harold F. Bradley, Deputy County Atty., 'Billings, Charles A. for re- ' spondent. Opinion MR. JUSTICE CASTLES delivered the of the Court. appeal by judgment This is an from a of the dis- court, County, trict Yellowstone rendered verdict convicting degree. him of the crime of assault the second
Early morning September 22, 1973, Officers Knut- Billings Department responded and of the Police sen Jones complaint to a that a had occurred a residential Billings. Upon area of their arrival at the scene, dis- severely covered one Calvin “Bubbles” White had been wound- by gunfire being helped into by ed and was his car Mr. and Immediately upon discovery Bill Mrs. Foster. that a shoot- ing occurred, inquired Officer Jones as to who had done shooting; replied with Foster words to the effect that “John patrol Grady did it”. The officers radioed other that cars suspect was John allowed the Fosters to drive hospital. to the the victim by Martinez testified she was awakened
Amelio a shot house, out the window her which and looked was across Bubbles’ house. She from observed street Mrs. Foster standing the driver’s side of Bubbles’ ear apparently trying then a car help him in. She saw come down the street off, make a lights stop. U-tum and then with its She testified T7Ó passenger point got
that at car on the a man out of this air; fired, thought side and a shot which was into the was she She that a then fired which caused testified second shot was ground. Bubbles to fall to the Aquilar by
Roberta testified that she was awakened talking. and, sound of loud from the win- She heard one shot approximately dow of block or 100 her house one-third of a activity, feet from the four ob- saw three or other shots. She lying down, probably served Bubbles on the sidewalk. Bub- got up and, being helped bles then while he was into his car Fosters, proceeded a blue Buick down with the street lights stopped its off. Buick She stated and more fired, thought. left, shots were about five she The car then police. made a U-turn and came back. She called approximately officers arrived five minutes thereafter. Over objection Aquilar permitted that when Mrs. arrived, open police heard, through window, she her *3 police ask Mr. Foster if he knew who had shot White Grady.” and that “Mr. Foster said it was John The Court question to answer the allowed the witness but cautioned the “allowing only purpose that it was the answer for the establishing made, the fact that this statement purpose showing falsity for the the truth or of the state- itself.” ment Knutsen, transpired: of Officer
On direct examination “Q. you arrived Now when ask Mr. White and shooting? had done the Mr. Foster who Object this, Honor, grounds “MR. Your ADAMS: proper no Hearsay, the Rules of foundation violates for its grounds -laid. Further on has been that it admission vio- -Rules of Confrontation. lates. the n “(cid:127)THE Overruled, going ! am to allow COURT:' witness again Jury I caution hut don’t allow "hnswer answer guilt yóur determination- to affect innocence -this de- purpose establishing sequence only fendant. It’s for the n of events. your “MR. please, May If Honor I have an ex- ADAMS: ception ruling objection? waiving my I am not so Yes, you continuing objection.
“THE may COURT: have a them, “A. I did not ask Officer them who had Jones asked shooting. done the
“Q. anyone reply question? Yes, Did to Officer Jones’ A. sir, Bill Foster did.
“Q. reply? Grady And what did he A. He stated that John had shot him.
«# # # put
“A. I out to local cars that one of the at witnesses scene had stated that John had done the Buiek, John owned a ’65 white over blue four door! At the I plate time had the license number written down in my notes and today. do recall what it was
“Q. you put out the license number Yes, sir, too? A. I did.” On direct Jones, examination of Officer this was elicited: * * *
“A. ISo turned back to William Foster who had run around and started to into the driver’s side and I said, ‘Who shot said, Bubbles?’-and he Grady, ‘John John shot ” Bubbles.’
And on cross-examination: Sally What about Foster, say anything? did she
Yes, she did. say? What did she A. She said
Bubbles.
“Q. Then both her and her husband volunteered this? A. No asked them and came out— *4 you specifically ask each of them individually? A. There was a lot of excitement there and I said, ‘Who shot said, him?’ and Mr. Foster ‘John did.’ they And then got in the stayed car and took off and I at the scene and Mrs. you see shoot- her, ‘Now who and asked
Foster was there they were Carolyn and ‘I and ing?’ she said, And saw ” shooting at him.’ Department testified Billings Wong of the Police Officer patrol car in a Spoerl were downtown that he and Officer and shooting had occurred dispatch that a and heard Grady, put air as John suspect over the was Wong then described driving Buick. Officer a white over blue thought might be a car which the observation of that vehicle pursuit of suspect vehicle, of their the details where John following into a cornfield and, the vehicle their Carolyn were arrested. and court, in cham- prosecution had rested the district After the required take that he was bers, informed defendant testify in his that, not take the stand if he did the stand county behalf, to that could be made no comment as own prove obligated to any way. That attorney in the State though he did beyond doubt even charge a reasonable hand, he that, on the other did have testify and subject to the same but would be own behalf on his having After any as other witness. type of cross-examination conferring privately with his coun- informed and after been so defendant, testify. sel, elected cross-examination, replete with admis- on direct and both group people got car and shot at the out of his sions that he Defendant, night. house Bubbles White’s in front of self-defense, car only in his however, that he states street. He drove down the as he having been fired intersection, got car, out car at stopped the persons fully exposed to the car walked around upon him. on cross-examina- firing This who were testimony: fairly his summarizes tion ? I went back to the side do A. what did Then oyer and some more shots I could look to where my car warning then T shot, fired the air and I fired a come nn to duck.
173; [*] [*] shotgun, the with you the car “Q. right now, All out of are . once, you at the second
you in air. Who did shoot fire the vicinity the just in shotgun? A. I fired you fired time the trying anybody. hurt of crowd low—I wan’t the that—but “X X X people three
“Q. you these many How did shoot at times shotgun? A. I believe standing the there on the sidewalk with once, I don’t might might it been have been twice. It have know.
“# # # people “Q. you air, Now shot in the twice at the have once shotgun, you put the over with into the car and here the once shotgun away. A. Yes.
“Q. you you anybody whether hit when see you shotgun? No, A. I shot them with the did because upon again. I was fired
“* X [*] again. “Q. now A. Yes. you So are fired
. you Okay, time and this how did the automatic I rifle or semi-automatic rifle out? A. take it out of the back seat. #- «
“* “Q. Okay, many now how with rifle ? shots fire fired with rifle was here in First front car and wasn’t— “Q. That’s one that cement? A. Yes. hit the with rifle? A. Where was second shot It was here, towards nearest the end over fired out to be White.” turned Calvin White, was without the of Calvin State’s case injured party, and without the of William and
Sally Foster, persons actually at the scene at the two time shooting. charged was arrested and with crime
assault degree, the first felony under former section 94-601R.C.M.1947, effect. The returned a verdict guilty degree. the crime of assault in the There- second upon, defendant years sentenced a term of six Montana State Prison. appeals presents from that conviction and two (1)
issues: Whether the district court’s admission of the hear- say testimony of the State’s witnesses defendant was the *6 assailant is reversible error?
(2) Whether produce the failure of the State to certain witnesses, may who participants have affray, direct in the established precluded the defense of self-defense defend- ant being from convicted of the crime of assault? We answer question each negative judgment and affirm the of the district court. respect
With to issue, position the first defendant’s is stated in these two sentences taken from his brief to this Court:
“Briefly stated, might felt that conviction not have been had if the defendant had not to admit elected evening he had fired White, certain shots that at Mr. * # using shotgun both Grady a rifle and a *. volun- tarily primarily assumed stand but his reasons for assum- ing predicated hearsay the stand were in introduced * * in case chief appeal,
Because of the view we take of this we do not exam- testimony ine the issue of whether the admission of the to 95-2425, the effect that “John did it” was error. Séction R.C.M.1947,provides:
“Any error, defect, irregularity or variance which does not rights disregarded.” affect substantial shall be - It is often object said that the of a trial is a search for the truth. voluntarily assumed the stand. His testimony in clearly admissions his beyond establish a reason able doubt that firing he was the at “Bubbles” White on night question. in Thus error, if any, in admitting light it”-when viewed testimony did the- that “John the substantial testimony whole, not affect of the as a did disregarded. rights properly of defendant and is testimony Admitting for the moment the State’s prompted to take may it” have defendant “John this, fact stand, although such the record does show disregarded not entitle defendant to have his does apparently should error found. Defendant asks this Court be to the defendant establish a rule of law which would allow specification of he every to error could enumerate conceivable compelled think error he was of and state that because of such Then, upon appeal, if this to take the own behalf. stand his any specifications of Court found that of those error merit, would his be entitled have disregarded. such a This Court will not establish rule law. summarily an may
Defendant’s second issue be plea he had swered. He contends that his of self-defense doing acts; prosecu in effect admitted the of certain that the compelled present witnesses, tion should then have been Fosters, plea, namely such “Bubbles” White and the vitiate presented by and that since none of the evidence the State *7 plea, could vitiate the it should deemed established and be acquittal. the court should have directed a verdict of district although persuasion The law in Montana is that the burden of State, in order avail himself of affirma remains the the self-defense, of tive defense of has the burden defendant producing evidence on the issue to raise a reasonable sufficient guilt. doubt of his 354, 234; Leakey, 366, v. 44 Mont. 120 P. v.
State State 220, 169 Powell, 217, 54 P. 46. Mont. judgment is affirmed.
The MR. CHIEF JUSTICE JAMES T. HARISON and MR. JUS- C. HARRISON concur. TICE JOHN (specially
MR. DALY concur- JUSTICES HAS WELL and ring) : affirming conviction, majority
We concur in but feel the opinion special contains an error of law to which this concur- ring opinion is directed.
- prejudiced “by The defendant contends that he was allowing hearsay testimony Court’s of Officer Knutsen majority the defendant hold was the assailant”. The testimony view, error”. In our admission this “harmless testimony admission is no error at all as the testi- mony clearly is admissible. at of Officer Knutsen that his arrival
the scene of the Mr. Foster stated act”, had the victim is admissible a “verbal as well as exception hearsay recognized to the rule. See Wharton’s Crim- Evidence, Ed., 2, inal 13th Yol. Sec. 274. The fact the state- made, irrespective ment was relevant. falsity, of its truth sequence immediately following It serves to show the of events explains shooting; particular why police activity why police subsequently apprehended focused on defendant and information, him. would left in the Without this be subsequent concerning the dark chase arrest defendant. : n clearly purpose Judge Wilson limited the to this “Overruled, going to allow but am the witness answer Jury your again I caution the don’t allow the answer to affect guilt only or innocence of this defendant. It’s determination establishing sequence purpose of for the events.” Hence, clearly admissible; testimony was no error was committed; “harmless error” rule is not and the involved.