No. 80-69 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

THE STATE OF MONTANA, Plaintiff and Respondent,

VS

# . CLIFFORD LaMERE

## , Defendant and Appellant.

Appeal from: DistrictCourt of theEighth Judicial District, In and For theCounty 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. Spriggargued, Assistant Attorney General,

Helena, Montana J. Fred Bourdeau, County Attorney, GreatFalls, Montana Carroll Blend argued, Deputy CountyAttorney, GreatFalls,

Great Falls, Montana

Submitted: November 10, 1980 ~ecided:

# DEG17

# 19m

~iled:

# DECI

## 71980

### Mr. 

### Chief JusticeFrank I. Haswell delivered the Opinion of the Court. Defendant Clifford LaMere appeals from ajury 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 leftthe store, hut 

### remained outside the store, looking in. Shortly thereafter, the complaining witness, Chris Calkins, 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 itclose to the bagboy's stomach, saying, "I'm going to kill that little s.0.b. and I'll kill you ifyou 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 toldWiley what had happened outside. One of the checkers in the storeoverheard the conversation between the victim and Wiley, and called the manager. The defendant was arrested laterthat day and charged with aggravated assault. He was convicted by a jury and thejudge sentenced him to ten years in Montana State prison.Defendant presents three issues to this Court. (1)

### Did the State sustain itsburden of proving aggravated assault, despitethe fact that the victim did 

### not testify to being in

### immediate fear? (2)Did the districtjudge errby not allowing defense counsel to ask prospective jurors whether re1atives or friends had ever been victims of an assault? (3)

### Did the districtjudge's repeated interruptions of defense counsel so prejudice the rights of the defendant that heisentitledto a new trial? The defendant was charged under section45-5-202(1)(c), MCA, which provides inpart: "A person commits the offense of aggravated assault if he purposely or knowingly causes:

"(c) reasonable apprehension of serious bodily injury inanother by use of aweapon

# .

# .."

Defendant contends that the State did not show that the victimwas placed in"reasonable apprehension

## ,"and therefore the State did not prove that element of the crime. The testimony of the victimshows 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 realizedwhat had happened. Defendant asks this Court to find that unless the victimtestifiesto an immediate fear of bodily injury that the defendant cannot be convicted under Montana law. At the outset, we note that section45-5-202(1)(c), MCA, makes no mention of the need to show that an immediate fear was aroused inthe victim. But defendant calls thisCourt's attentiontothe early Montana case of State v. Barry (1912), 45 Mont. 598, 124

### P. 775, inwhich this Court approved the charge to the jury: "[Aln assault isany unlawful physical force partlyorfully put inmotion which creates a reasonable apprehension of immediate physical injury

# . .." State v. Barry, supra, 45 Mont. at603, 124

### P. at 776-777. "Immediate feari' was not at issue inthat case. What was inquestionwas whether defendant could be found guilty of assault when the victim did not even know that the defendant was pointinga gun at him. The court's finding that the victimwas

never infear, 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 isto prevent breaches of the peace, for when a victim isput inaposition of knowing that he may receive a blow unless he strikes inself-defense, then the victimmay be provoked into breaching the peace. State v. Barry, 45 Mont. at602-3, 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 we11 as a loaded gun, could be used to commit an assault because the offense iscommitted at the time that the "party assaulted believces] inthe reality of the attack. 

# . . The true rule isthat there must be some adaptation of the means to the end, and it isenough ifthis adaptation be apparent, so as toimpress or alarm a person of ordinary reason." State v. Barry, 45 Mont at 603, 124 P. at776. This Court does require the Stateto 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 inreasonable 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 isthe onlyway to prove "reasonable apprehension." We recognize that, as incivil assault, "apprehension isnot the

same thing as fear," W. Prosser, Law of Torts $10 (4th ed 1971), and we also recognize that a victimmay be put ina position, such as the victimtestifiedto here, of being so startled, or shocked, or afraid, that his reaction isa 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 victimtestified that he brushed off the defendant and hurried back into the store, doing just as the defendant told him. Kimble Wiley testified that the victimcame running up to him and that "he was talkinga littlerapidly. You know, tryingto get it all out atonce, you know." The victim himself testified tothe type of reactionthat he had: "Q. That iswhat you toldMiss Watts, isthat 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. Afteryou did have a reaction, what reactionwas that? 

### A. That 

### I could have got hurt or killed. 

### "Q. Orkilled? A. Yes. "Q. When didyou have that reaction? 

### A. Right after Ileftthe person with the knife. 

### "Q. And you went towarn Kimble? A. Yes." On the basis of this evidence, we find that the judge correctly denied defendant's motion to dismiss, and properly submittedthe case tothe 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 victimwas reasonably apprehensive of serious bodily injury. We 

### will not overturn that finding because we find that it issupported by substantial evidence. State v. Merseal

## , supra, 167 Mont. at415, 538 P.2d at 1368. The appellant next contends that defendant's rightto a fair trial may have been prejudiced by the exclusion of a particular lineof questions during voir dire. Defense counsel asked the jurors, "Have any of you ever been a victimof a crime?" All jurors were permitted to answer the question and discuss itwith counsel. Next, counsel asked, "Any of you ever had friends or relatives who have been the victimof 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 incriminal law. 

### I will ask you now to confine your questions to the things that have todo with these particularjurors."Counsel objected to this limitation, and abandoned the lineof questioning. She now argues that this case might have gone tothe jury with a sittingjuror who had a close friend or relativewho was the victimof 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 intoaccount inassessing the effect of the judge's refusal of questions during voir dire. The defendant isentitled to an impartial jury and the purpose of voir dire isto expose any possible biases. Haynes v. Missoula County (1973), 163 Mont. 270, 287-88, 517 P.2d 370, 380. Inchoosing an impartial jury, counsel must have wide latitude inquestioning during voir dire. Yet the trial judge must also be able to set reasonable limitson 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 differingconclusions 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 victimof the crime charged. United States v. Bradley (2dCir. 1971), 447 F.2d 224, 226; Commonwealth v. Davis (1978), Pa. 

## , 400 A.2d 1320, 1321. Many courts have found that it isalso relevant to inquire into experiences of the jurors' immediate family members with respect tothe crime charged. Beyond that limit, it isdiscretionary 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 victimof the crime charged or who has experienced the crime through a family member's experience islikelyto have very strong feelings toward a defendant accused of that crime, and any possible bias should be explored during voir dire. However, it isnot necessary for the trial judge to a1low questions as tofriends and acquaintances. The trial judge did not abuse his discretion inrestricting 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 bringany evidence tothis 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 bringthe 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 inthe 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 appellant argues that the cumulative effect of this conduct may have been tomake 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 ina speedy and fair manner and has wide latitude inso 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 otherinstancewas discussed above and involved the judge's limitation ofwhat he feltto be an overly-broad question. Absent an abuse of discretion, which isnot alleged here, the trial judge has great latitude incontrolling voir dire. Borkoski

## , supra, Mont. 

## ,594 P.2d at690, 36 St.Rep. at812. 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 closingarguments. The judge asked counsel 

### if she would liketo takethe afternoon recess or continue to argue. This interruptionmay have broken the continuity of her argument, but it appears that the judge was only attempting to facilitatethe tria1

# .Although the record reflects numerous interruptions of defendant's case, there isevidence to show that most of the interruptions were warranted. Counsel does not a1lege, and the record does not show, that the judge's conduct of the trial was meant to do anything but expedite and facilitatethe trial. The defendant isnot entitledto a new trial. The conviction isaffirmed.

ChiefJustice /" We concur":