No. 82-151 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

SHANE STEVEN WHITE, 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

In and for the County of Lewis and Clark 

Honorable Gordon Bennett, Judge presiding. 

Counsel of Record: 

For Appellant: 

Nicholas C. Jacques argued, Helena, Montana 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena, Montana 

Shexi -Swrigg --argud-,---Assi-s.tan~--A~~rney- -General, Helena, 

F4er.i-m 

Charles Graveley, County Attorney, Helena, Montana 

Kevin Meek argued, Deputy County Attorney, Helena, 

Montana 

Submitted: September 20, 1982 

Decided: February 18, 1983 

Filed : 

FEB i ::93 
Mr. Justice John C. Sheehv delivered the Opinion of the Court. 

Defendant appeals from his conviction of felony aggravated 

assault in the District Court, First Judicial District, Lewis 

and Clark County. The District Court imposed a sentence of 10 

years with 7 years suspended and recommended that the Department 

of Institutions place the defendant in Swan River Youth Camp. 

The case arose out of an altercation at a bar near Helena. 

The defendant (White) had been accompanied to the bar by his 

companions, Dan Phillips and Joe Harris. At the bar were Allen 

Pippin, the victim of the alleged aggravated assault, Keith 

Capps and Kent Liles. Pippin and Liles were playing pool with 

Phillips and Harris, the losers to buy beers. At the conclusion 

of their final game, won by Phillips and Harris, Pippin and 

Capps refused to pay off the bet. An argument ensued, Pippin 

and his companions left the bar and White's companions followed 

them out to the parking lot. White, observing them go out to 

the parking lot, picked up a pool cue stick, and followed them 

out. 

The evidence is contradictory as to what followed. During 

the verbal argument which erupted in the parking lot, White 

walked 10 feet to Pippin so that the two were face to face. 

White testified as did Phillips, that Pippin "took a swing" at 

White, but missed. Three witnesses for the State denied that 

Pippin swung at the defendant. White struck Allen Pippin on the 

side of the head with the butt end of the pool cue. Pippin was 

knocked to the ground and eventually required hospitalization. 

While Pippin was being helped to his feet, White and his 

companions went to the bar, obtained their wraps and a beer, and 

left. 
The State's case against White was based on alternative 

theories. First, the State argued that based upon their 

witnesses' testimony, White got into an argument with Pippin, 

and struck him with a pool cue, White being the aggressor. Its 

second. theory was that even if Pippin did swing at the 

defendant, White acted unreasonably in the amount and extent of 

force that he used to repel Pippin's attack and therefore he was 

not entitled to a defense of self-defense. 

White timely appealed his conviction. He raises two 

principal issues: 

1. The District Court erred in permitting crossexamination of Phillips, a defense witness, about specific acts 

of misconduct allegedly committed by Phillips not related to the 

case at trial. 

2. The District Court erred in giving its instruction no. 

10 in words as follows: 

"You are instructed that if you find that the 

defendant was assaulted with fists, then you 

are instructed as follows: 

"An assault with the fists does not justify 

the person being assaulted in using a weapon 

in self-defense unless that person believes 

and a reasonable person in the same or similar 

circumstances would believe that the assault 

would likely inflict death or serious bodily 

harm to himself or to prevent the commission 

of a forcible felony." 

IMPROPER CROSS-EXAMINATION OF A WITNESS FOR DEFENDANT 

White, in his case-in-chief, called as a defense witness, 

Dan Phillips, one of his companions at the event in question. 

Phillips testified, as did White, that Pippin struck at White 

with an overhand fist which missed White and that White then 

lifted the cue stick a.nd hit Pippin on the side of the head. 
On cross-examination by the deputy county attorney, the 

following colloquy between witness, the court and counsel 

occurred: 

"Q. You go to Cutone's quite frequently; 

isn't that true? A. I used to quite 

frequently, yes. 

"Q. And isn't it true--Do you know Tom 

Cutone, the owner? A. I sure do. 

"Q. And isn't it true that he told you he 

didn't want you at his bar? 

"MR. JACQUES: Your Honor, I'm going to object 

to this. If there's going to be argument, I'd 

like to argue it outside the presence of the 

jury. It's improper impeachment. 

"THE COURT: I think that's right. What's the 

point of that question? I think I'll sustain 

the objection. 

"THE WITNESS: I am allowed in Cutone's now 

and. have been. 

"BY MR. MEEK: 

I'Q. What kind of drink did you buy the 

defendant and his girlfriend for a birthday 

drink? A. I believe a can of Rainier for 

Shane, and I think a glass of wine for Cindy, 

but I'm not sure. 

"Q. Were you drinking beer out of a can? A. 

Yes, I was. 

"Q. And what was Joe Harris drinking beer out 

of? A. Can of Rainier. 

"THE COURT: I'll reverse that decision. You 

may inquire as to whether Mr. Cutone asked him 

to stay out of the bar. 

"BY MR. MEEK: 

"Q. Isn't it true, Mr. Phillips, that the 

owner of Cutone's instructed you that you were 

never to attend his bar prior to this 

incident? Isn't that true? A. A long time 

ago he 'eighty-sixed' me from the bar. 

Q. And what does 'eighty-sixed' mean? A. Do 

not come back, but then I have talked to him, 

and he said, 'Maybe it ' s not your fault, ' and 

I was allowed in there, and I still am. 

"Q. Maybe what wasn't your fault? A. My 

girlfriend's brother beat me up in Cutone's, 
broke five of my ribs, blacked both of my 

eyes, broke my nose, and since my girlfriend's 

sister was working there, he thought it 

probably was a good idea that I didn't show 

UP 

"Q. Isn't it true that the reason that you 

were banned from Cutone's is because you 

constantly caused trouble there? A. No I 

that's not true." 

At the time set for the beginning of trial, court, counsel 

and the defendant met, and the District Court made a ruling on 

defendant's motion - in limine that "any bad acts or specific 

instances of conduct of the defendant or other witnesses not 

arising with the facts giving rise to the instant charge" be not 

questioned or referred to. The court granted the motion in 

limine at the outset of trial. 

Notwithstanding the court's order - in limine, the deputy 

county attorney asked the questions relating to specific 

instances of misconduct of the witness Phillips as we have set 

forth above. The deputy county attorney admitted during oral 

argument tha.t he purposely asked the questions so as to later 

impeach the witness on his instances of misconduct through the 

owner of the bar. The State thereafter, in its rebuttal case, 

called the owner of the bar as a witness, who testified that 

Phillips had indeed been banned from the bar for "incidents 

which had occurred three weeks to a month before" the event 

which was the subject of the case at bar. 

The District Court erred in permitting the interrogation of 

a witness, not a party to the suit, as to past instances of 

misconduct for the purpose of impeaching the witness. This 

issue is controlled by Rule 608, M.R.Evid., relating to evidence 

of the character and conduct of a witness. That section 

provides in pertinent part: 

"(b) Specific instances of conduct. Specific 

instances of the conduct of a witness, for the 
purposes 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, or (2) concerning the 

character for truthfulness or untruthfulness 

of another witness as to which character the 

witness is being cross-examined has 

testified.. . ." 

The testimony elicited by the State in this case against the 

witness Phillips, that he had been. guilty of misconduct at bars, 

d-oes not fit within the exception of Rule 608(b), quoted above 

that specific instances of conduct may be inquired into if 

probative of truthfulness or untruthfulness. As Professor Moore 

states with respect to the similar rule in the Federal Rules of 

Evidence: 

"The exception is narrowly drawn in 

recognition of the opportunities for abuse 

when evidence of specific instances of 

conduct is offered. Thus the rule admits 

such evidence only on cross-examination and 

only if probative as to a witness's 

truthfulness or untruthfulness . . . " 10 

Moore's Federal Practice 9608.21, at VI-89 

(Oct. 1976). 

The testimony as to Phillips1 previous misconduct was 

wholly unrelated to the ability of Phillips to observe, recall 

or testify as to any relevant occurrences in the altercation 

between White and Pippin. It served only to create unfair 

prejudice against White, and confusion of the issues for the 

jury, and as such should have been barred under Rule 403, 

"Although relevant, evidence may be excluded 

if its probative value is substantially 

outweighed by the danger of unfair 

prejudice, confusion of the issues, or 

misleading the jury,. . . waste of time I1 . . . 

The result here as to this issue would be the sa.me even before 

the adoption of the Montana Rules of Evidence. Former section 
93-1901 (11) , R.C.M. 1947, used substantially the same language. 

Specific wrongful acts used in cross-examination of witnesses to 

degrade their characters were condemned in State v. Rogers 

(1904), 31 Mont. 1, 6, 77 P. 293; State v. C~OW~ (1909), 39 

Mont. 174, 177, 102 P. 579; State v. ~anakarias (19171, 54 Mont. 

180, 184, 169 P. 42; State v. Shannon (1933), 95 Mont. 280, 288, 

26 P.2d 360. In State v. Rivers (1958), 133 Mont. 129, 320 

P.2d 1004, this Court said: 

"States differ on the rule of proper 

impeachment. Montana's view is clear. Its 

violation is an invasion of a substantial 

right. Our applicable section is section 

93-1901(11), R.C.M. 1947: 'A witness may be 

impeached by the party against whom he was 

called, by contradictory evidence or by 

evidence that his general reputation for 

truth, honesty or integrity, is bad, -- but not 

Q evidence of particular wrongful acts, 

except that itmay be shown by examination 

of the witness, or the record of the 

judgment, that he has been convicted of a 

felony. ' We cannot accept respondent's 

explanation that this was to test the 

credibility of the defendant on statements 

made, and not for their truth or veracity, 

or again that it was to show that defendant 

knew from the death of the child in Idaho 

that insufficient food would resul-t in the 

child's death. And finally, respondent 

State and the lower court's view that even 

though this be error, it was waived by the 

defendant in her redirect. It was error. 

(citing cases) 

"Great damage had been done; a substantial 

right of the defendant had been invaded 

. . . " (Emphasis added.) 133 Mont. at 134, 

135, 320 P.2d at 1007. 

WHETHER INSTRUCTION NO. TEN WAS PROPER 

White's second issue relates to the giving of instruction 

no. 10, which instructed the jury on the issue of self-defense 

when a person is assaulted by another with fists. 

The District Court had also instructed the jury in 

statutory language with respect to justifia-ble use of force by a 

person in the face of a threat or assault. For the convenience 
of the reader, we set forth here the portion of court's 

instruction no. 9 which covered the statutory definition, and 

instruction no. 10 which was objected to by defendant: 

"Instruction no. 9: 

"A person is justified in the use of force 

or threat to use force against another when 

and to the extent that he reasonably 

believes that such conduct is necessary to 

defend himself or another against such 

other's imminent use of unlawful force. 

However, he is justified in the use of force 

likely to cause death or serious bodily harm 

only if he reasonably believes that such 

force is necessary to prevent imminent death 

or serious bodily harm to himself or another 

or to prevent the commission of a forcible 

felony . . ." 

"Instruction no. 10. 

"You are instructed that if you find that 

the defendant was assaulted with fists then 

you are instructed as follows: 

"An assault with the fists does not justify 

the person being assaulted in using a weapon 

in self-defense unless that person believes 

and a reasonable person under the same or 

similar circumstances would believe that the 

assault is likely to inflict death or 

serious bodily harm to himself or to prevent 

the commission of a forcible felony. " 

White's objections to court's instruction no. 10 were that 

it laid too much emphasis on fists, that self-defense had been 

adequately defined, and that it goes outside the statute on 

self-defense (section 45-3-102, MCA) if it states "you can never 

use a weapon to combat fists." 

Court's instruction no. 9 sets forth in full the requisite 

elements to establish self-defense in a sufficient manner to 

guide the jury here. The giving of court's instruction no. 10 

was repetitious, and may have placed undue emphasis on the 

requirements for self-defense. Inasmuch as this cause is being 

remanded for a new trial, we recommend that the repetitious 

instruction not be given in any future trial. 
Reversed and remanded. 

We Concur: 
Mr. Justice Daniel J. Shea, concurring: 

I join in the opinion but I want to stress two factors. 

It was highly prejudicial for the court to permit the 

prosecutor to attempt to impeach witness Phillips by asking 

him whether he and defendant had joined together in previous 

fights. Whether intended or not, the undeniable effect of 

the question and any answer elicited was to cause the jury to 

disbelieve witness Phillips that Alan Pippin was the 

aggressor. Because of this prejudicial line of questioning 

the jury may well have believed that defendant was the 

aggressor and it therefore may not have considered his claim 

of self defense based on his contention that Allen Pippin was 

the first aggressor. 

Second, I stress that jury instruction no. 10 should nctt 

be given in place of instruction no. 9 in the retrial of this 

case. In holding the instructions to be merely repetitive, 

the majority opinion may leave the impression that it may be 

proper to use either instruction no. 9 or instruction no. 10, 

but not both. While the instructions are repetitive, 

instruction 10 unduly emphasizes the effect of using a weapon 

in a case of self defense where the evidence is that the 

other person used only his fists. Instruction no. 9 is the 

proper instruction to be used in the retrial of this case. 

1 

J+&d, 

2 ustice 

I join in the separate concurring opinion of Justice 

Shea. . 

I