No. 79-84 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

WAYNE A. CAMITSCH, 

Defendant and Appellant. 

Appeal from: District Court of the Second Judicial District, 

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&. 

/ Clerk 
Mr. Chief Justice Frank I. Haswell, sitting in place of Mr. 

Justice Frank 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 Silver Bow 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 of fender. 

Based on a statement given to police by a juvenile boy 

that he and two juvenile girls had been given wine and marijuana 

by the defendant and a certain "Doc West," and that the two men 

then "molested" the girls, Butte police Officer Graham and 

Detective Johnson went to defendant'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 officers did not then specify the 

crime, the defendant voluntarily accompanied them to police 

headquarters. Upon arrival, Detective Johnson informed defendant 

of his rights and informed him of the allegations that he had 

engaged in sexual intercourse with juvenile girls. According to 

the officers, the defendant indicated that he understood his 

rights, read the Miranda card presented to him, and waived his 

rights by signing it. The officers testified that the defendant 

appeared sober and in control of his faculties; the defendant 

testified that he 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 

in his own 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 his written confession, 

which was later transcribed. The lower court suppressed the 

transcribed statement, finding that the defendant had been 

induced to sign blank pages onto which the taped statement was 
later typed. 

On May 3, 1979, the State charged the defendant and a 

codefendant by information with multiple counts of sexual assault 

and sexual intercourse without consent. The defendant moved to 

sever his trial from that of his codefendant. 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 

defendant moved to substitute another judge for Judge 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 in District 

Court, asking that he be granted the right to inspect the Youth 

Court records of the prosecuting witnesses, all of 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 

district judge sentenced defendant to 40 years in prison on each 

count of sexual intercourse, and 10 years on the count of sexual 

assault, all to run 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 his motion for a new trial, and the court's designation 

of defendant as a dangerous offender. He raises six issues: 

1. Did the defendant voluntarily and knowingly waive his 

Miranda rights? 

2. Was the defense motion to substitute timely, when filed 
52 days after defense counsel received notice of the judge's 

assumption of jurisdiction, but within ten days of the State's 

filing of a separate information against the defndant? 

3. Did the trial court's refusal to disclose the Youth 

Court records of certain prosecution witnesses for use on 

cross-examination violate defendant's Sixth Amendment right to 

con£ ront his witnesses? 

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 in designating defendant a 

dangerous of fender? 

Defendant contends that the confession he made at the 

police station was not voluntary because he was incapable of 

waiving his rights, and because the police used coercive tactics 

in interrogating him. Therefore, he argues that the 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), 174 Mont. 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. State v. 

Allies ( 1980 ) , Mont . , 621 P.2d 1080, 1086-1087, 37 

St.Rep. 2089, 2097. 

Based on the evidence presented at the suppression 

hearing, the trial judge determined that defendant's confession 

was voluntary. Voluntariness is a factual question addressed to 

the discretion of the court, and that determination will not be 

overturned if it is supported by substantial credible evidence. 

State v. Allies, supra, Mont. at , 621 P.2d at 1087, 37 
St.Rep. at 2097-2098. 

The defendant testified at the hearing that he had been 

under the influence of paint fumes when he made the incriminating 

statement, and that he was advised of his rights only after the 

statement had been given. He further testified that police 

officers had told him that his statement would not be used 

against him, but would only be used as an aid in arresting "Doc 

West", a suspected child molester. The defendant further testified that Officer Johnson told him to sign several documents. 

Johnson allegedly represented one of the documents to be a 

"release" that, when signed, would allow defendant to leave the 

interrogation room; in reality it was a waiver of defendant's 

Miranda rights. 

Police officers testified that defendant was advised of 

his rights four times before defendant made his statement. In 

each instance, the accused indicated that he 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 

dealing with 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 test if ied that the defendant wrote 

the words after they inquired what the defendant meant by the 

statement, "I did it to a degree with [A.R.B.] ." (one of the 

juvenile girls.) 

The determination of voluntariness turned solely on the 

credibility of the witnesses. Two inconsistent versions of the 

events surrounding the confession were presented to the judge, 

and his denial of the motion necessarily includes a finding that 
he chose to believe the officers1 testimony. State v. Robuck 

(1952), 126 Mont. 302, 309, 248 P.2d 817, 820. We must defer to 

the district judge who is in a superior position to judge the 

credibility of the witnesses. State v. Lucero (1968), 151 Mont. 

531, 543, 445 P.2d 731, 737. 

We find that the district judge's finding of voluntariness 

is supported by substantial credible evidence. We will not 

substitute our judgment for his when there is substantial evidence to support his determination. State v. Allies, supra, 

Mont. at , 621 P.2d at 1087, 37 St.Rep. at 2097-2098. The 

district judge correctly denied the motion to suppress. 

Appellant argues that the district judge should have 

entered findings of fact and conclusions of law on the question 

of voluntariness, because there was conflicting evidence in the 

record. While we agree that it would be a better practice 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, particularly where defendant never asked that findings and conclus ions be entered. 

Appellant next claims error in the district judge's refusal 

to grant his motion for substitution of judge. We hold that the 

judge ruled correctly in finding that defendant's motion was 

untimely. 

On May 3, 1979, the defendant and a codefendant, Randolph 

Scott, were charged by information with multiple counts of sexual 

assault and sexual intercourse without consent. On that date the 

State filed a timely motion 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 that Judge Olsen had assumed jurisdiction. The 
defendant then moved to sever his trial from that of his codefendant Scott. The court granted the motion to sever on June 19, 

1979. On June 25, 1979, the defendant moved to substitute 

another judge for Judge Olsen. The motion was denied as not 

timely. 

The defense motion, filed 52 days after defense counsel 

was informed that Judge Olsen had been assigned to the case, was 

clearly untimely. Defense counsel cites no authority, and we 

find none, holding that the filing of 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; State ex rel. Leavitt 

v. District Court (1977), 172 Mont. 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 

initiates a new cause or proceeding which would give rise to a 

new right of substitution. 

Defendant mistakenly cites Farr v. Superior Court of 

Maricopa County (1977), 114 Ariz. 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 initially charged 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 few days 

later the State moved to consolidate the two causes, rape and 

kidnapping. Noting that the kidnapping case bore a separate 

filing date, a separate case number, and required a separate 

arraignment from the rape prosecution, the Arizona Supreme Court 
held that the defendant was statutorily entitled to have his 

motion to substitute judges in the second case granted regard less 

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 in one 

information, but chose not to do so. The court also intimated 

that if the motion to consolidate had been granted before the 

motion to change judges had been made in the second cause, the 

defendant could have been deemed to have waived his right to a 

peremptory change of judge. 

Farr deals only with the effect of a motion to consolidate 

clearly separate 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 

that Judge Olsen would preside over the proceedings both before 

and after severance. The district judge properly denied the 

motion for disqualification. 

On June 29, 1979, shortly before defendant went to trial, 

the defendant filed a motion asking the court to allow counsel 

for defendant 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 

State countered 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 that he 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 expressly based 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 Sixth Amendment 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 this right is 

guaranteed to defendants in state proceedings 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 that of cross-examination, Davis v. 

Alaska, supra, 415 U.S. at 315, 94 S.Ct. at 1110, 39 L.Ed.2d at 353: 

"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 only permitted to delve 

into the witness' story to test the witnesst 

perceptions and memory, but the cross-examiner 

has traditionally been allowed to impeach, i .e., 

discredit, the witness . . . A more particular 

attack on the witness' credibility is effected 

by means of cross-examination directed toward 

revealing possible biases, prejudices, or 

ulterior motives of the witness as they may 

relate directly to issues or personalities in 

the case at hand. 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). We have 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)." 

In Davis, defense counsel argued to the Court that the 

principal witness 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 statute providing for the 

con£ identiality of juvenile records, the trial judge ref used to 

let counsel inquire into the witnesst juvenile record and his 
possible motivations to alter his 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 of fender. 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 at 355. 

We find that the judge's ruling here denying defendant's 

motion to inspect denied him his right 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; State v. Myers 

(1976), 115 R. I. 1583, 350 A. 2d 611, 614-615. 

We decline to adopt a rule as broad as that which has been 

adopted in many states, which allows evidence of prior juvenile 

convictions to be used as evidence to attack the general credibility of a witness. See State v. 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 

credibility of 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, 

or motive. See State v. Brown (1975), 132 N.J. Super. 584, 334 

In this case, defendant attempted to attack both competency and credibility. The trial judge examined the juvenile 

records of the juvenile witnesses in order to determine whether 

the juveniles were competent under Rule 601, Mont.R.Evid. He 
excluded testimony from L. B., finding that based on reports from 

Warm Springs, she was seriously mentally ill and should not 

testify. His examination of the other juvenile records revealed 

that all of the other witnesses were competent. The trial judge 

specifically voir dired J.S.E., the witness whose competency was 

in question, and found her to be competent. We find no evidence 

in the record indicating that J.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 will not be overturned absent an abuse of discretion. 

State v. Shambo (1958), 133 Mont. 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 in connection with this crime; the other witness 

(J.S.E.) was in fact involved with the juvenile court system at 

the time of trial. But defendant was given plenty of opportunity 

to cross-examine J.S.E. as to her motives for testifying, and her 

credibility was attacked many times while she was on the witness 

stand. She admitted lying when she was initially questioned by 

the police. She testified that she originally did not want to 

talk to the police, but changed her mind in order 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, all of which indicated to the jury 

that she was involved with the juvenile authorities. 

In sum, we find that defendant should have been permitted 
to inspect the juvenile records, - in camera, in order to determine 

whether there were factors present which would give the witnesses 

a motive to testify in the State's favor, or render them somehow 

biased or prejudiced. But having made this inspection since the 

time of trial, we have determined that in this case, 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. 

At trial, defendant offered testimony from Bill Murray, 

a Butte attorney, who was called to the police station on April 

5, 1979 by Debbie Foster, the sister of codefendant, Randolph 

Scott. The defendant made a formal offer of proof stating that 

Murray would testify that Foster had told him that J.S.E., a prosecution witness 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. in which she allegedly repudiated her 

prior incriminatory statements regarding the defendant. The 

court excluded the report. 

Defendant predicates error on these rulings of the trial 

judge, arguing that the court should have allowed the "jury to 

learn that one of the complaining witnesses was testifying after 

having been denied her rights to remain silent and be represented 

by counsel and had subsequently repudiated the incriminating statement she had made against the Defendant ." 

The district judge's ruling as to Murray's testimony was 

correct. Murray intended to testify as to what Debbie Foster had 

told him, and Foster's testimony was being offered for its truth. 

Rule 801, Mont.R.Evid. This testimony was clearly hearsay and 

was inadmissible. Rule 802, Mont .R. Evid . Further, defendant was 

not denied his right to get this information before the jury; he 

could have called Debbie Foster to testify about her 
observations. 

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 that defendant was free to question the police as to the 

prior inconsistent statements made 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 this exhibit s admission into evidence. 

Appellant next alleges error in the district judge's refusal to give several of his offered jury instructions. 

Defendant's proposed instruction No. 4 would have told the jury 

that: 

"A charge such as that made against the Defendant 

in this case is one which is easily made, and, once 

made, difficult to defend against, even if the person accused is innocent. 

"Therefore, the law requires that you examine the 

testimony of the female persons named in the information with caution." 

We approved a similar instruction in State v. Smith 

(1980 1 Mont. , 609 P.2d 696, 37 St.Rep. 583, and determined that it should be given in those cases in which 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. State v. Pecora (1980), Mon t . 

, 619 P.2d 173, 37 St.Rep. 1742. See also State v. Higley 

(1980 t Mont. , 621 P.2d 1043, 37 St.Rep. 1942. 

Here, the District Court properly refused to give the 

Smith instruction. As to Counts I1 and 111, charging defendant 

with sexual intercourse without consent against A. R. B. and 

L.A.W., there was no basis in the evidence for offering 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. Is brother and from Mr. 

Nicholson, both of whom had witnessed the acts of defendant 

against A.R.B. The judge correctly determined that the jury 

should not be instructed to view the testimony of these two witnesses any differently from that of any other witness. 

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 

that J.S.E. had threatened that she would get even with defendant 

for keeping her from seeing the codefendant. Additionally, the 

only evidence of the crime was that given by J.S.E. herself, and 

she admitted to changing her story in several particulars. In 

sum, there was a sufficient basis in the evidence for this type 

of instruction, under Smith, but the defendant failed to limit 

the instruction to advising the jury to look with caution at the 

testimony of only J.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. State v. Pecora, 

supra, Mont. at , 619 P.2d at 175, 37 St.Rep. at 1745. 

Defendant also predicates error on the trial court's 

failure to give two instructions relating to impeachment. 

Proposed Instruction No. 5 contained a definition of 

"impeachment" and an explanation that the law allows a witness to 

be impeached by prior inconsistent statements. Proposed Instruction No. 6 outlined for the jury certain types of evidence which 

could serve to impeach a witness' testimony. 

Defendant agreed at trial that the explanation in proposed 

Instruction No. 5 about prior inconsistent statements was adequately covered by the court's Instruction No. 3. Therefore we 

need only consider whether a definition of "impeach" should have 
been given to the jury. Although technical words and expressions 

used in jury instructions must be defined for the jury, words of 

common understanding need not be so explained. McGuinn v. State 

(1978), 177 Mont. 215, 225, 581 P.2d 417, 423; State v. ~umphries 

(1978), 21 Wash.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 Instruction No. 3 to consider 

certain factors in assessing the credibility of the witnesses. 

Instruction No. 3 told the jury how to analyze the testimony 

without ever telling them that they were to consider certain evidence as "impeaching" evidence. A definition of impeach was not 

necessary in that the jury was fully instructed on this aspect of 

the law and defense counsel was not precluded from arguing his 

theory of the case. See State v. 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 Instruction No. 6 was adequately 

covered by the court's Instruction No. 3. No. 6 contained a 

nonexhaustive list of evidence that a juror could consider in 

assessing the credibility of a witness, as set forth in the comments to Rule 607, Mont.R.Evid. Although it would not have been 

error to give such a specific instruction, it was unnecessary for 

the court to do so. The instruction given contained the 

substance of defendant1 s instruction: 

"You are the 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 will judge the credibility of a 

witness by the manner in which he testifies, by 

the nature of his testimony, or by evidence 

affecting his character for truth, honesty or 

integrity, or his motives, or by contradictory 

evidence; and in determining the weight to be 

given to the testimony of any witness, you have 

a right to consider the appearance of each witness on the stand, his manner of testifying, his 

apparent candor or lack of candor, his apparent 

fairness or lack of fairness, his apparent 

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 

falsely as to any material 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 Instruction No. 3. 

It was clearly unnecessary for the court to give 

defendant's proposed instruction. The substance of it was contained in the instructions given, and we will look to the 

instructions as a whole in determining whether they are adequate. 

State v. Caryl (1975), 168 Mont. 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 this designation and that this designation was as conclusory as 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, in his 

discretion, to designate a criminal as dangerous for purposes 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 recitation of 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 this case 

reveals substantial evidence which could have led the district 

judge to designate defendant "dangerous," we remand the cause to 

the district judge for findings to support his conclusion. 

Unlike the district judge in McFadden, Judge Olsen made a 
finding that defendant was dangerous. However, without having 

the reasons articulated in the judgment, we cannot de tennine 

whether there was an abuse of discretion by the judge. 

We a£ firm the c o n v i c t i o n s in this cause , and remand it to 

the District Court for findings to support the designation of 

defendant as "dangerous. " 

Mr. Chief Justice Frank I. Haswell 

sitting in place of Mr. Justice 

Frank B. Morrison. 

Mr. ~usf%&red J. Weber sitting 

in place of Mr. Justice Daniel J. 

Shea.