No. 79-84 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

STATE OF MONTANA, Plaintiff and Respondent,

VS

# . WAYNE A. CAMITSCH, Defendant and Appellant.

Appeal from: DistrictCourt of the Second JudicialDistrict, In and for the County of Silver Bow. Honorable Arnold Olsen, Judge presiding. Counsel of Record: For Appellant: Joseph C. Engel 111, argued, Butte, Montana For Respondent: Hon. Mike Greely, Attorney General, Helena, Montana Chris Tweeten argued, Assistant Attorney General,

Helena, Montana John G. Winston, County Attorney, Butte, Montana Michael Wheat argued, Deputy County Attorney, Butte,

Montana

Submitted: February 19, 1981 Decided: 

# Wdfl- (2. &&At&.

### / ClerkMr. Chief Justice Frank I. Haswell, sitting inplace of Mr. JusticeFrank B. Morrison, delivered the Opinion of the Court. Defendant appeals from a conviction of three counts 

### of sexual intercourse without consent and one count of sexual assault, following a jury trial in SilverBow County. We affirm his conviction, but remand the cause 

### to District Court for findings 

### to support the District Court's designation of defendant as

a dangerous offender. Based on 

### a statement given to police by a juvenile boy thathe and 

### twojuvenile girlshad been given wine and marijuana by the defendant and a certain "Doc West," and thatthe two men then "molested" the girls, Butte police OfficerGraham and Detective Johnson went todefendant's auto repair garage on April 2, 1979. They told the accused that they 

### were investigating a crime and that they wanted defendant 

### to accompany them to police headquarters. Though the officersdid not then specify the crime, the defendant voluntarilyaccompanied them to police headquarters. Upon arrival, Detective Johnson informed defendant of hisrights and informed him of the allegations thathe had engaged in sexual intercourse with juvenile girls. According to the officers, the defendant indicated thathe understood his rights, read the Miranda card presented to him, and waived his rightsby signing it. The officers testified that the defendant appeared sober and in control of hisfaculties; the defendant testified thathe had been painting a 

### car before the 

### arrest, and that his faculties

### were impaired from the paint fumes. While at the station, defendant gave a narrative statement inhisown handwriting, admitting an act of sexual intercourse with A.R.B., a juvenile. Defendant was then placed under arrest. He then gave a taped statement similar to hiswritten confession, which 

### was later transcribed. The lower court suppressed the transcribed statement, finding that the defendant had been induced to signblank pages onto which the taped statementwas

### later typed. On May 3, 1979, the Statecharged the defendant and a codefendant by information with multiple counts of sexual assault and sexual intercourse without consent. The defendantmoved 

### to

severhis trial from thatof hiscodefendant. On June 19, 1979, the court granted the motion 

### to sever and the State filed a separate information against the defendant. On June 25, 1979, the defendantmoved to substitute anotherjudge forJudge Arnold Olsen, contending that under the rule on substitution, a case is not assigned until the information 

### is filed and that therefore the motion 

### was timely. The court disagreed and denied the motion.Prior 

### to trial, defendant filed a motion inDistrict Court, asking thathe be granted the right 

### to inspect the Youth Court records of the prosecuting witnesses, allof whom 

### were juveniles, on the grounds that the records might have a bearing

on the competency and veracity of those witnesses. The district judge denied the motion, relying on the con£identiality provisions of the Youth Court Act, sections 41-5-601, 41-5-602, MCA, and Rule 609, Mont.R.Evid. Defendant was convicted of three counts of sexual intercourse without consent and one count of sexual assault. The districtjudge sentenced defendant 

### to 40 years inprison on each count of sexual intercourse, and 10years on the count of sexual assault, all torun concurrently. The court designated the defendant a dangerous offender. Judgment 

### was entered on August 6, 1979. Defendant appeals from the convictions on all counts, the denial of hismotion for a new trial, and the court's designation of defendant as a dangerous offender. He raises six issues: 1. Did the defendant voluntarilyand knowingly waive his Miranda rights? 2. Was the defense motion 

### to substitute timely, when filed52 days afterdefense counsel received notice of the judge's assumption of jurisdiction, but within ten days of the State's filingof a separate information against the defndant? 3. Did the trial court's refusal to disclose the Youth Court recordsof certainprosecution witnesses for use on cross-examination violate defendant's SixthAmendment right to con£ ronthiswitnesses? 4. Did the court improperly exclude testimony regarding coercion of a prosecution witness? 5. Did the District Court 

### commit reversible error in rejecting certain of defendant1 s proposed jury instructions? 6. Did the court 

### err indesignating defendant a dangerous offender? Defendant contends that the confessionhe made atthe police station

### was not voluntarybecause he was incapable of waiving hisrights, and because the police used coercive tactics in interrogating him. Therefore, he argues thatthe District Court erred in allowing his statement to be used as evidence against him. In determining whether a confession should be suppressed, the trial judge must decide whether 

### or not it 

### was voluntary. State

### v. Lenon (1977), 174Mont. 264, 271, 570 P.2d 901, 906. The determination of voluntariness depends on the "totality of the circumstances," with the burden of proof on the State to prove voluntariness by 

### a preponderance of the evidence. Statev. Allies (1980)

## , Mont

# . ,621P.2d 1080, 1086-1087, 37 St.Rep. 2089, 2097. Based on the evidence presented atthe suppression hearing, the trial judge determined thatdefendant's confession



### was voluntary. Voluntariness is a factual question addressed to the discretion of the court, and thatdetermination

### willnot be overturned if 

### it is supported by substantial credible evidence. Statev. Allies, supra, Mont. 

### at 

## , 621P.2d 

### at 1087, 37St.Rep. at 2097-2098. The defendant testified atthe hearing thathe had been under the influence of paint fumes when he made the incriminating statement, and that he was advised of hisrightsonly afterthe statement had been given. He further testified thatpolice officershad told him thathis statement would not be used against him, but would onlybe used asan aid in arresting "Doc West", a suspected child molester. The defendant further 

### testified thatOfficer Johnson told him to sign several documents. Johnson allegedlyrepresented one of the documents to be a "release" that, when signed, would allowdefendant 

### to leave the interrogation room; inreality it 

### was a waiver of defendant's Miranda rights. Police officers testified thatdefendant was advised of hisrights four 

### times before defendantmade his statement. In each instance, the accused indicated thathe understood his rights. Their testimony 

### was corroborated by defendant's written statement, which 

### was recorded on a "voluntary statement" document and the Miranda waiver card signed by defendant. The officers denied telling the defendant that they wanted the statement only

as a tool in getting"Doc West': Both officers

### were experienced in dealingwith suspects under the in£luence of intoxicants; they testified that defendant appeared sober and coherent. Defendant testified that the words "sexual intercourse"



### were written on the "voluntary statement" document by Detective Johnson. The police officers testif ied that the defendant 

### wrote the words afterthey inquired what the defendantmeant by the statement, "I did it to a degree with [A.R.B.]

# ."(oneof the juvenile girls.) The determination of voluntariness turned solelyon the credibilityof the witnesses. Two inconsistent versions of the events surrounding the confession were presented to the judge, and hisdenial of the motion necessarily includes a finding thathe chose to believe the officers1testimony. Statev. Robuck (1952), 126Mont. 302, 309, 248 P.2d 817, 820. 

### We must defer to the districtjudge who 

### is in a superior position to judge the credibilityof the witnesses. Statev. Lucero (1968), 151Mont. 531, 543, 445 P.2d 731, 737. We find that the districtjudge's finding of voluntariness is supported by substantial credible evidence. 

### We willnot substituteour judgment forhiswhen there is substantial evidence 

### to support hisdetermination. Statev. Allies, supra, Mont. at 

## , 621P.2d at 1087, 37 St.Rep. at2097-2098. The districtjudge correctlydenied the motion 

### to suppress. Appellant argues that the districtjudge should have entered findingsof fact and conclusions of 

### lawon the question of voluntariness, because there 

### was conflicting evidence inthe record. While 

### we agree that it would be a betterpractice 

### to do this, 

### we have never held that a judge's failure 

### to enter findings and conclusions in a suppression hearing would result in a reversal. Here, the basis of the judge's decision 

### is obvious: he resolved conflicting testimony in favor of the State. We find no error in his failure to enter specific findings, particularlywhere defendant never asked that findings and conclusions be entered. Appellant next claims error in the districtjudge's refusal to grant hismotion for substitution of judge. Wehold that the judge ruled correctly in finding thatdefendant's motion 

### was untimely. On May 3, 1979, the defendant and a codefendant, Randolph Scott, were charged by information with multiple countsof sexual assault and sexual intercourse without consent. On that date the State filed a timelymotion to substitute a judge for the presiding judge. On the 

### same day, Judge Arnold Olsen assumed jurisdiction

# . The following day defense counsel acknowledged receipt of notice thatJudge Olsen had assumed jurisdiction. Thedefendant then moved 

### to sever histrial from thatof hiscodefendant Scott. The court granted the motion 

### to sever on June 19, 1979. On June 25, 1979, the defendantmoved to substitute anotherjudge forJudge Olsen. The motion 

### was denied 

### as not timely.The defense motion, filed 52days afterdefense counsel



### was informed thatJudge Olsen had been assigned 

### to the case, 

### was clearlyuntimely. Defense counsel cites no authority, and 

### we find none, holding that the filingof a separate information after

severance of 

### a criminal 

### trial somehow revives the right 

### to peremptorily disqualify the judge. The usual rule, under prior 

### law, is that 

### a right of disqualification, once lost, cannot be revived. Town Pump, Inc. v. District Court (1979), Mont.



## ,590 P.2d 1126, 1129, 36 St.Rep. 282, 286; Stateex rel. Leavitt

v. District Court (1977), 172Mont. 12, 18, 560 P.2d 517, 521. Nor does defendant 

### cite any authority holding that the filing of a separate information after severance of a criminal action initiatesa new cause orproceeding which would give 

### rise 

### to a

new right of substitution. Defendant mistakenly 

### cites Farr v. SuperiorCourt of Maricopa County (1977), 114Ariz. 485, 562 P.2d 365, for the proposition that the right of 

### a party to disqualify a judge "cannot be abridged by an order separating the case

# ." In Farr, defendant

was initiallycharged with rape. Defense counsel moved to change judges. The motion 

### was granted and the 

### case was transferred to the respondent judge. Thereafter, the county attorney filed a second information, charging the accused with kidnapping. This second case 

### was also assigned to the respondent judge. Defense counsel moved to change judges in this second cause. A fewdays later the Statemoved to consolidate the twocauses, rape and kidnapping. Noting that the kidnapping case bore a separate filingdate, 

### a separate case number, and required a separate arraignment from the rape prosecution, the Arizona Supreme Courtheld that the defendant 

### was statutorilyentitled to have his motion to substitutejudges in the second case granted regardless of the fact that the two causes filed against him 

### were consolidated. Farr, supra, 562 P.2d at 366. The court noted that the county attorney could have charged both offenses inone information, but chose not to do so. The court also intimated that if the motion to consolidatehad been granted before the motion 

### to change judges had been made in the second cause, the defendant could have been deemed to have waived hisright to a peremptory change of judge. Farr deals onlywith the effect of a motion to consolidate clearlyseparate proceedings on a peremptory right of disqualification--not 

### -with the effect of a motion to sever on the right of substitution. The defendant's argument has no 

### merit. He 

### was on notice thatJudge Olsen would preside over the proceedings both before and after severance. The district judge properly denied the motion fordisqualification. On June 29, 1979, shortlybefore defendantwent to trial, the defendant filed a motion asking the court to allow counsel fordefendant to inspect the Youth Court records 

### of any complaining witnesses on the grounds that the records might have

a bearing on the competency and veracity of those witnesses. The Statecountered with a motion in limine to exclude reference to such records, relying on the con£identiality provisions of the Youth Court Act, sections 41-5-601 and 41-5-602, MCA, and Rule 609, Mont.R. Evid. In denying defendant's motion, Judge Olsen stated thathe would personally examine the witnesses' records to determine whether any of the girls should be examined by a psychiatrist before testifying. Defendant's motion to inspect the prosecution witnesses' youth records was expresslybased on a desire to examine them for information that the defense could use 

### to challenge the witness-es' testimonial competency and to impeach their credibility. He asserts that the trial court's refusal 

### to allow such an examination violated the defendant's SixthAmendment right to confront the adverse witnesses against him, relying on Davis v. Alaska (1974), 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347. The Sixth Amendment guarantees the right of an accused to "be confronted with the witnesses against him," and thisright is guaranteed todefendants in stateproceedings as well 

### as in federal proceedings. Pointer v. Texas (1965), 380 U.S. 400, 85

The United States Supreme Court has cautioned that confrontation must include more than defendant's being allowed to confront the witness physically. A primary interest secured by the con£rontation clause is thatof cross-examination, Davis v. Alaska, supra, 415 U.S. at315, 94 S.Ct. 

### at 1110, 39 L.Ed.2d at353: "Cross-examination is the principal means by which the believability of a witness and the truth of his testimony 

### are tested. 

# .. [Tlhe cross-examiner is not onlypermitted 

### to delve into the witness' storyto 

### test the witnesst perceptions and memory, but the cross-examiner has traditionallybeen allowed to impeach, i

### .e., discredit, the witness

# ..

# . A 

### more particular attackon the witness' credibility 

### is effected bymeans of cross-examination directed toward revealing possible biases, prejudices, 

### or ulterior motives of the witness as they may 

### relate directlyto issues 

### or personalities in the case athand. The partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony.' 3A J. Wigmore, Evidence 

### 5 940, p. 775 (Chadbourn rev. 1970). Wehave recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy (1959), 360 U.S. 474, 496, 3 L.Ed.2d 1377, 79 S.Ct. 1400 (1959)." InDavis, defense counsel argued to the Court that the principalwitness for the State, a juvenile on probation, had

reason to be biased and to color his testimony in favor of the State. However, based on the Alaska statuteproviding for the con£identialityof juvenile records, the trial judge refused to 

### let counsel inquire into the witnesst juvenile record and hispossible motivations to alterhis testimony. The United States Supreme Court determined this to be error, finding that defendant

was denied his constitutional right of confrontation. The Supreme Court recognized the competing interest in maintaining the confidentiality of a juvenile's records. But the Court concluded: "In this setting

# .. .the right of confrontation is paramount to the State's policy of protecting a juvenile offender. Whatever 

### temporary embarrassment might result to [the juvenile] 

### or his family by disclosure of his juvenile record--if the prosecution insisted on using him to make its 

### case--is outweighed by [defendant's] right 

### to probe into the influence of possible bias in the testimony of a crucial identification witness.I1 Davis, supra, 415 U.S. at 319, 94 S.Ct. at 1112, 39 L.Ed.2d at355. We find that the judge's ruling here denying defendant's motion to inspect denied him hisright to confront the witnesses against him. But our subsequent review of those juvenile records convinces us that the error in this

### case is harmless. See Salaz

v. State (1977), Wyo

# . , 561 P.2d 238, 241; Statev. Myers (1976), 115R.I. 1583, 350 A. 2d 611, 614-615. We decline 

### to adopt a rule asbroad as thatwhich has been adopted in many states, which allows evidence of prior juvenile convictions tobe used as evidence to attack the general credibilityof 

### a witness. See Statev. Deffenbaugh (1975), 217 Kan. 469, 536 P.2d 1030. Montana, unlike many states, does not recognize the use of prior convictions to impeach the general credibilityof a witness. Rule 609, Mont.R.Evid. Therefore, we con£ine the permissible use of these juvenile records to demonstrating, by cross-examination, a witness' bias, prejudice,

ormotive. See Statev. Brown (1975), 132N.J. Super. 584, 334

In this case, defendant attempted to attackboth competency and credibility. The trial judge examined the juvenile records of the juvenile witnesses inorder to determine whether the juveniles 

### were competent under Rule 601, Mont.R.Evid. Heexcluded testimony from L. B., finding thatbased on reports from Warm Springs, she 

### was seriouslymentally ill and should not testify. Hisexamination of the otherjuvenile records revealed that allof the otherwitnesses 

### were competent. The trial judge specificallyvoir dired J.S.E., the witness whose competency 

### was inquestion, and found her to be competent. We find no evidence inthe record indicating thatJ.S.E. 

### was incapable of truthfulness or in any way incompetent to testify. It 

### is within the discretion of the trial judge to determine competency and his findings

### willnot be overturned absent an abuse of discretion. Statev. Shambo (1958), 133Mont. 305, 309, 322 P.2d 657, 659. Here the Court did not 

### err in allowing the juvenile witnesses 

### to testify. We further conclude that the juvenile records provided no basis for impeaching the witnesses by showing bias 

### or prejudice. Two of the juvenile witnesses had no juvenile records until the trial 

### was completed; one witness (L.B.) 

### was disqualified from testifying by the judge; one witness had been on probation for

one month, but the probation had been completed before defendant



### was arrested inconnection with this

### crime; the otherwitness (J.S.E.) 

### was in fact involved with the juvenile court system at the 

### time of trial. But defendant 

### was given plenty of opportunity tocross-examine J.S.E. astoher motives for testifying, and her credibility

### was attacked many 

### times while she 

### was on the witness stand. She admitted lying when she 

### was initiallyquestioned by the police. She testified that she originallydid not want 

### to talk to the police, but changed hermind inorder to teach the codefendant in this

### case a lesson. Defense counsel elicited the information from J.S.E. that she 

### was presently a resident of the Mountain View Home, and asked her whether she had been promised any favors for testifying, 

### allof which indicated 

### to the jury that she 

### was involved with the juvenile authorities. In sum, 

### we find thatdefendant should have been permitted

### to inspect the juvenile records, in

### camera, inorder 

### to determine - whether there

### were factors present which would give the witnesses

a motive to testify in the State's favor, orrender them somehow biased 

### or prejudiced. But having made this inspection since the 

### timeof 

### trial, we have determined that in thiscase, the denial of the motion to inspect 

### was harmless error. Because defendant's rights

### were not prejudiced in this situation, 

### we find no reason to grant defendant a new trial. Attrial, defendant offered testimony from BillMurray,

a Butte attorney, who 

### was called to the police stationon April 5, 1979by Debbie Foster, the 

### sister of codefendant, Randolph Scott. The defendant made a formal offerof proof stating that Murray would testify that Foster had told him thatJ.S.E., a prosecutionwitness and one of the victims, was being questioned in violation of her right 

### to counsel and her right 

### to remain silent. The court rejected the offer 

### as hearsay. The defendant 

### also offered Exhibit "J"

## ,a police investigative report, relating a statement taken from J.S.E. inwhich she allegedlyrepudiated her prior incriminatory statements regarding the defendant. The court excluded the report. Defendant predicates 

### error on these rulingsof the 

### trial judge, arguing that the court should have allowed the "jury 

### to learnthatone of the complaining witnesses 

### was testifying after having been denied her rights 

### to remain silentand be represented by counsel and had subsequently repudiated the incriminating statement she had made against the Defendant

# ."

The districtjudge's ruling as to Murray's testimony was correct. Murray intended to testify as to what Debbie Fosterhad told him, and Foster's testimony 

### was being offered for its truth. Rule 801, Mont.R.Evid. This testimony 

### was clearlyhearsay and

was inadmissible. Rule 802, Mont.R. Evid

# . Further, defendant

### was not denied hisright to get thisinformation before the jury; he could have called Debbie Foster 

### to testify about herobservations. Defendant concedes that exhibit "J"may have been hearsay, but he argues that the evidence which it contained should have been presented to the jury nonetheless. We agree that it was inadmissible hearsay. Rules 803(8), 802, Mont.R. Evid. We do note thatdefendant

### was free to question the police 

### as 

### to the prior inconsistent statementsmade by J.S. E. contained in that report, Rule 801(d), Mont.R.Evid, and he 

### was free to question J.S.E. about those statements. The court ruled correctly in denying thisexhibit 

### s admission into evidence. Appellant next alleges error in the districtjudge's refusal to give several of hisoffered jury instructions. Defendant's proposed instructionNo. 4would have told the jury that: "A charge such 

### as thatmade against the Defendant inthiscase is one which is easilymade, and, once made, difficult

### to defend against, even if the person accused is innocent. "Therefore, the 

### lawrequires thatyou examine the testimony of the female persons named in the information with caution." We approved a similar instruction in Statev. Smith (1980 1 Mont. 

## ,609 P.2d 696, 37 St.Rep. 583, and determined that it should be given in those cases inwhich the evidence at 

### trial shows (1)personal enmity between the victim and the defendant, 

### - and (2)no corroborating evidence to support the victirrls account of the rape. Statev. Pecora (1980), Mont

# .

, 619 P.2d 173, 37 St.Rep. 1742. See 

### also Statev. Higley (1980 t Mont. 

## ,621P.2d 1043, 37 St.Rep. 1942. Here, the District Court properlyrefused to give the Smith instruction. As toCounts I1 and 111, charging defendant with sexual intercourse without consent against A.R.B. and L.A.W., therewas no basis in the evidence foroffering this instruction. No evidence 

### was adduced showing any personal enmity between the defendant and A.R.B. 

### or L.A.W. In addition, there

### was corroborating testimony from A.R.B. Isbrother and from Mr. Nicholson, both of whom had witnessed the 

### acts of defendant against A.R.B. The judge correctlydetermined that the jury should not be instructed 

### to view the testimony of these two 

### witnesses any differently from thatof any otherwitness. The evidence at trial did show personal enmity between the defendant and J.S.E. She testified that she wanted 

### to teach Camitsch's codefendant a lesson, and the codefendant testified thatJ.S.E. had threatened that she would geteven with defendant forkeeping her from seeing the codefendant. Additionally, the onlyevidence of the 

### crime was thatgiven by J.S.E. herself, and she admitted to changing her story in several particulars. In sum, there

### was a sufficientbasis in the evidence for thistype of instruction, under Smith, but the defendant failed to limit the instruction 

### to advising the jury 

### to look with caution atthe testimony of onlyJ.S.E. The instruction 

### as offered 

### was erroneous and incorrect with respect to the testimony of the other complaining witnesses, A.R.B. and L.A.W. Accordingly, it 

### was correcty refused in 

### its offered form. We find no 

### error in the judge's refusal to give the instruction under these circumstances. Statev. Pecora, supra, Mont. at 

## , 619 P.2d at 175, 37 St.Rep. at 1745. Defendant also predicates 

### error on the trial court's failure togive 

### two instructions relating 

### to impeachment. Proposed InstructionNo. 5 contained a definition of "impeachment" and an explanation that the 

### law allows a witness to be impeached by prior inconsistent statements. Proposed InstructionNo. 6 outlined for the jury certain types of evidence which could serve to impeach a witness' testimony. Defendant agreed at trial that the explanation inproposed InstructionNo. 5 about prior inconsistent statements

### was adequatelycovered by the court's InstructionNo. 3. Therefore 

### we need only consider whether a definition of "impeach" should havebeen given 

### to the jury. Although technical words and expressions used injury instructionsmust be defined for the jury, words of

common understanding need not be so explained. McGuinn v. State (1978), 177Mont. 215, 225, 581 P.2d 417, 423; Statev. ~umphries (1978), 21Wash.App. 405, 586 P.2d 130, 135. None of the instructions given to the jury contained the 

### term "impeach

## ,"but the jury was told by the judge in InstructionNo. 3 to consider certain factors in assessing the credibility of the witnesses. InstructionNo. 3 told the jury how to analyze the testimony without ever telling them that they 

### were to consider certainevidence as "impeaching" evidence. A definitionof impeach 

### was not necessary in that the jury was fully instructed on thisaspect of the lawand defense counsel 

### was not precluded from arguing his theory 

### of the case. See Statev. Kirkaldie (1978), Mont.



## , 587 P.2d 1298, 1304-1305, 35 St.Rep. 1532, 1538-1539; State

v. Lee (1976), 221 Kan. 109, 558 P.2d 1096, 1099. Defendant's proposed InstructionNo. 6

### was adequately covered by the court's InstructionNo. 3. No. 6contained 

### a nonexhaustive list of evidence that a juror could consider in assessing the credibility of 

### a witness, as set forth inthe 

### comments toRule 607, Mont.R.Evid. Although it would not have been



### error to give such a specific instruction, it 

### was unnecessary for the court todo so. The instructiongiven contained the substance of defendant1 

### s instruction: "You arethe sole judges of the credibility of 

### all the witnesses who have testified in this 

### case, and of the weight to be given their testimony. You willjudge the credibility of a witness by the manner inwhich he testifies, by the nature of his testimony, or by evidence affecting his character for truth, honesty or integrity, 

### or hismotives, orby contradictory evidence; and in determining the weight to be given tothe testimony of any witness, you have a right to consider the appearance of each 

### witness on the stand, hismanner 

### of testifying, his apparent candor orlack of candor, hisapparent fairness orlack of fairness, hisapparent intelligence or lack of intelligence, his knowledge and means of knowledge on the subject upon which he testifies, together with all the other circumstances appearing in evidence on the trial."If you believe that any witness who has testified in this case has wilfully testified falselyas

### to anymaterial matter in the case, you must reject such of his testimony as you believe to have been false and you have the right to view the rest of his testimony with distrust and in your discretion disregard it, unless, after examination of all the evidence, you find such testimony worthy of belief

# ."

Court's InstructionNo. 3. Itwas clearlyunnecessary for the court to give defendant's proposed instruction. The substance of it 

### was contained in the instructions given, and we willlook to the instructions asa whole in determining whether they 

### are adequate. Statev. Caryl (1975), 168Mont. 414, 430, 543 P.2d 389, 398. The last specification of 

### error involves the district judge's designation of defendant a "dangerous offender" for parole purposes. Defendant argues that there

### was no evidence to support thisdesignation and that thisdesignation was as conclusoryas the designation which this Court struck down in

### Matter of McFadden (1980)

## , Mont

# . , 605 P.2d 599, 37 St.Rep. 55. Section 46-18-404, MCA, allows the district judge, inhis discretion, to designate a criminal as dangerous forpurposes of parole. In McFadden

## , supra, Mont. at 

## , 605 P.2d 

### at 600, 37 St.Rep. at 56, we held that a court must articulate 

### its

reasons for the designation, and that

### mere recitationof the statutory language was insufficient. The reason articulated here by Judge Olsen 

### was that "[defendant] represents a substantial danger to other persons in society in the opinion of this Court

# ."

We find this to be a mere recitation of the statute, and violative of McFadden. But because the record in thiscase reveals substantial evidence which could have led the district judge to designate defendant "dangerous," we remand the cause to the districtjudge for findings to support his conclusion. Unlike the districtjudge inMcFadden, Judge Olsen made afinding thatdefendant 

### was dangerous. However, without having the reasons articulated in the judgment, 

### we cannot detennine whether therewas an abuse of discretion by the judge. We a£ 

### firm the c o n v i c t i o n s in thiscause

## ,and remand it to the District Court for findings to support the designation of defendant as "dangerous.

### "

Mr. Chief Justice Frank I. Haswell sitting inplace of Mr. Justice Frank B. Morrison.

Mr. ~usf%&red J. Weber sitting inplace of Mr. JusticeDaniel J. Shea.