No. 80-69 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

VS . 

CLIFFORD LaMERE , 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and For the County of Cascade. 

Honorable John McCarvel, Judge presiding. 

Counsel of Record: 

For Appellant: 

Sandra K. Watts argued, Great Falls, Montana 

For Respondent: 

Honorable Mike Greely, Attorney General, Helena, Montana 

Sheri K. Sprigg argued, Assistant Attorney General, 

Helena, Montana 

J. Fred Bourdeau, County Attorney, Great Falls, Montana 

Carroll Blend argued, Deputy County Attorney, Great Falls, 

Great Falls, Montana 

Submitted: November 10, 1980 

~ecided: DEG 1 7 19m 

~iled: DEC I 7 1980 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Defendant Cl ifford LaMere appeals from a jury verdict 

finding him guilty of aggravated assault, in violation of section 

45-5-202(1)(~), MCA. 

On the afternoon of August 29, 1979, the manager of 

Albertson's grocery store in Great Falls noticed defendant 

removing numerous plastic bags from a roll in the store. The 

manager asked defendant to leave. Defendant left the store, hut 

remained outside the store, looking in. 

Shortly thereafter, the complaining witness, Chris 

Cal kins, a new bagboy at the store, accidently bumped into defendant on his way back into the store. Defendant turned to him 

with a large knife and held it close to the bagboy's stomach, 

saying, "I'm going to kill that little s.0.b. and I'll kill you 

if you don't get that mother f---- r. " The victim brushed by 

the defendant and walked quickly into the store to get Kimble 

Wiley, "the littlest person" he could see. Talking rapidly, he 

told Wiley what had happened outside. One of the checkers in the 

store overheard the conversation between the victim and Wiley, 

and called the manager. The defendant was arrested later that 

day and charged with aggravated assault. He was convicted by a 

jury and the judge sentenced him to ten years in Montana State 

pri son. 

Defendant presents three issues to this Court. 

(1) Did the State sustain its burden of proving aggravated 

assault, despite the fact that the victim did not testify to 

being in immediate fear? 

(2) Did the district judge err by not allowing defense 

counsel to ask prospective jurors whether re1 atives or friends 

had ever been victims of an assault? 

(3) Did the district judge's repeated interruptions of 

defense counsel so prejudice the rights of the defendant that he 
is entitled to a new trial? 

The defendant was charged under section 45-5-202(1)(c), 

MCA, which provides in part: 

"A person commits the offense of aggravated 

assault if he purposely or knowingly causes: 

"(c) reasonable apprehension of serious bodily 

injury in another by use of a weapon . . ." 

Defendant contends that the State did not show that the 

victim was placed in "reasonable apprehension ," and therefore the 

State did not prove that element of the crime. The testimony of 

the victim shows that he was "shocked" at the time of the 

incident, but that he was not actually conscious of any fear 

until after he walked away from the defendant and realized what 

had happened. Defendant asks this Court to find that unless the 

victim testifies to an immediate fear of bodily injury that the 

defendant cannot be convicted under Montana law. 

At the outset, we note that section 45-5-202(1)(c), MCA, 

makes no mention of the need to show that an immediate fear was 

aroused in the victim. But defendant calls this Court's attention to the early Montana case of State v. Barry (1912), 45 Mont. 

598, 124 P. 775, in which this Court approved the charge to the 

jury: 

"[Aln assault is any unlawful physical force 

partly or fully put in motion which creates a 

reasonable apprehension of immediate physical 

injury . . ." State v. Barry, supra, 45 Mont. 

at 603, 124 P. at 776-777. 

"Immediate feari' was not at issue in that case. What was 

in question was whether defendant could be found guilty of 

assault when the victim did not even know that the defendant was 

pointing a gun at him. The court's finding that the victim was 

never in fear, and therefore that there could not be an assault, 

gave the court an opportunity to discuss the purpose of the 

assault statutes. The court noted that the legislative aim is to 

prevent breaches of the peace, for when a victim is put in a 
position of knowing that he may receive a blow unless he strikes 

in self-defense, then the victim may be provoked into breaching 

the peace. State v. Barry, 45 Mont. at 602-3, 124 P. at 776. 

See also C. E. Torcia, Wharton's Criminal Law, $180 (14th ed. 

1979). 

The Barry court found that an unloaded gun, as we1 1 as a 

loaded gun, could be used to commit an assault because the 

offense is committed at the time that the 

"party assaulted believces] in the reality of 

the attack. . . The true rule is that there must be 

some adaptation of the means to the end, and it 

is enough if this adaptation be apparent, so as 

to impress or alarm a person of ordinary 

reason." State v. Barry, 45 Mont at 603, 124 P. 

at 776. 

This Court does require the State to present evidence to 

show the victim's state of mind at the time of the alleged 

assault. Without such evidence, it is impossible for the jury to 

determine whether defendant's conduct placed the victim in reasonable fear or apprehension of serious bodily injury. See State 

v. Merseal (1975), 167 Mont. 412, 416, 538 P.2d 1366, 1368; State 

v. Sanders (1971), 158 Mont. 113, 117, 489 P.2d 371, 373. 

But this Court has never held that a showing of immediate 

fear is the only way to prove "reasonable apprehension." We 

recognize that, as in civil assault, "apprehension is not the 

same thing as fear," W. Prosser, Law of Torts $10 (4th ed 1971), 

and we also recognize that a victim may be put in a position, 

such as the victim testified to here, of being so startled, or 

shocked, or afraid, that his reaction is a delayed one. The 

"reasonable apprehension" may be a response that the victim is 

not instantly aware of, but his actions may clearly show that he 

apprehends the reality of the attack. Here the victim testified 

that he brushed off the defendant and hurried back into the 

store, doing just as the defendant told him. Kimble Wiley 

testified that the victim came running up to him and that "he was 

talking a little rapidly. You know, trying to get it all out at 
once, you know." The victim himself testified to the type of 

reaction that he had: 

"Q. That is what you told Miss Watts, is that 

right? A. That I wasn't scared at the time. 

"Q. Yes. A. Yes. 

"Q. What were you feeling at the time? A. I 

was just reacting, I wasn't feeling really 

nothing. Just that I reacted. 

"Q. After you did have a reaction, what reaction was that? A. That I could have got hurt 

or killed. 

"Q. Or killed? A. Yes. 

"Q. When did you have that reaction? A. Right 

after I left the person with the knife. 

"Q. And you went to warn Kimble? A. Yes." 

On the basis of this evidence, we find that the judge 

correctly denied defendant's motion to dismiss, and properly submitted the case to the jury. From the testimony concerning the 

victim's nonverbal responses and the victim's own testimony concerning his reactions, the jury was able to make a determination 

that the victim was reasonably apprehensive of serious bodily 

injury. We will not overturn that finding because we find that 

it is supported by substantial evidence. State v. Merseal , 

supra, 167 Mont. at 415, 538 P.2d at 1368. 

The appellant next contends that defendant's right to a 

fair trial may have been prejudiced by the exclusion of a particular line of questions during voir dire. Defense counsel 

asked the jurors, "Have any of you ever been a victim of a 

crime?" All jurors were permitted to answer the question and 

discuss it with counsel. Next, counsel asked, "Any of you ever 

had friends or relatives who have been the victim of an assault?" 

After two persons answered the question, the trial judge 

interrupted: 

"I will ask you now to -- some of these 

questions are general questions and ace getting 

so broad that we could be here all day finding 

re1 atives or acquaintances of somebody who has 

been involved in criminal law. I will ask you 

now to confine your questions to the things that 

have to do with these particular jurors." 
Counsel objected to this limitation, and abandoned the 

line of questioning. She now argues that this case might have 

gone to the jury with a sitting juror who had a close friend or 

relative who was the victim of an assault, perhaps making it 

impossible for that juror to be objective. 

We find that the trial judge unnecessarily limited voir 

dire, but under the facts of this case, we do not find reversible 

error. 

There are several overriding principles that must be taken 

into account in assessing the effect of the judge's refusal of 

questions during voir dire. The defendant is entitled to an 

impartial jury and the purpose of voir dire is to expose any 

possible biases. Haynes v. Missoula County (1973), 163 Mont. 

270, 287-88, 517 P.2d 370, 380. In choosing an impartial jury, 

counsel must have wide latitude in questioning during voir dire. 

Yet the trial judge must also be able to set reasonable limits on 

voir dire. See Borkoski v. Yost (1979), Mont. , 594 P.2d 

688, 690, 36 St.Rep. 809, 812. 

Several jurisdictions have considered the issue raised by 

appellant. Despite differing conclusions reached as to the 

extent of the questions that must be allowed, the courts considering the matter uniformly agree that the trial judge should 

minimally allow a question as to whether any prospective juror 

has been a victim of the crime charged. United States v. Bradley 

(2d Cir. 1971), 447 F.2d 224, 226; Commonwealth v. Davis (1978), 

Pa. , 400 A.2d 1320, 1321. 

Many courts have found that it is also relevant to inquire 

into experiences of the jurors' immediate family members with 

respect to the crime charged. Beyond that limit, it is discretionary with the trial judge as to whether to allow questions 

about friends, relatives or crimes other than the one charged. 

United States v. Poole (3rd Cir. 1971), 450 F.2d 1082, 1083-1084. 

We find this view to be persuasive. A person who has him- 
self been a victim of the crime charged or who has experienced 

the crime through a family member's experience is likely to have 

very strong feelings toward a defendant accused of that crime, 

and any possible bias should be explored during voir dire. 

However, it is not necessary for the trial judge to a1 low 

questions as to friends and acquaintances. The trial judge did 

not abuse his discretion in restricting questions directed toward 

jurors' friends, but counsel should have been able to question 

about immediate family members as victims of an assault. 

We note that counsel never posed a question directed only 

at the jurors themselves and their families, nor does counsel 

bring any evidence to this Court showing that defendant was prejudiced by the judge's restrictions. This Court will not presume 

prejudice. If it did exist, it is incumbent on defendant to 

bring the evidence of prejudice before us. Kuchan v. Harvey 

(19781, Mont. , 585 P.2d 1298, 1301, 35 St.Rep. 1547, 

1550. We find no reversible error in the judge's limitation. 

Appellant next predicates error on the trial judge's 

interruptions during voir dire and his interruptions of her 

opening statement and closing argument. Counsel for appel lant 

argues that the cumulative effect of this conduct may have been 

to make the jury look unfavorably upon the defendant, although 

she admits that the judge was not openly hostile or intentionally 

attempting to prejudice the defendant. 

Judicial conduct of a trial can affect the substantive 

rights of a defendant. Annot., 62 ALR2d 166. But the court also 

has a duty to conduct the trial in a speedy and fair manner and 

has wide latitude in so doing. State v. Pippi (1921), 59 Mont. 

116, 123, 195 P. 556, 558-59. 

Among the interruptions of which defendant complains are 

several instances during voir dire. The record reveals that the 

trial judge interrupted both counsel several times, admonishing 

their use of "law school questions" with the jury. The other 
instance was discussed above and involved the judge's limitation 

of what he felt to be an overly-broad question. Absent an abuse 

of discretion, which is not alleged here, the trial judge has 

great latitude in controlling voir dire. Borkoski , supra, 

Mont. , 594 P.2d at 690, 36 St.Rep. at 812. 

The judge also interrupted defense counsel during her 

opening statement, warning her not to argue the case. Although 

a judge should not interrupt the opening, so as to prevent 

defendant from outlining his defense, the trial judge can stop 

counsel from giving instructions or arguing the case. State v. 

Martinez (1980), Mont. , 613 P.2d 974, 982, 37 St.Rep. 982, 

991. Here the judge properly interrupted counsel. 

The last interruption occurred about 2:30 p.m. during 

closing arguments. The judge asked counsel if she would like to 

take the afternoon recess or continue to argue. This interruption may have broken the continuity of her argument, but it 

appears that the judge was only attempting to facilitate the 

tri a1 . 

Although the record reflects numerous interruptions of 

defendant's case, there is evidence to show that most of the 

interruptions were warranted. Counsel does not a1 lege, and the 

record does not show, that the judge's conduct of the trial was 

meant to do anything but expedite and facilitate the trial. The 

defendant is not entitled to a new trial. 

The conviction is affirmed. 

Chief Justice 

/" We concur":