No. 12822 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1975 

THE STATE OF MONTANA, 

Plaint iff and Respondent, 

-VS - 

MARLIN KOLSTAD, 

Defendant and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Robert Wilson, Judge presiding. 

Counsel of Record: 

For Appellant : 

John L. Adams, Jr. argued, Billings, Montana 

For Respondent: 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana 

Thomas A. Budewitz, Assistant Attorney General, 

argued, Helena, Montana 

Harold F. Hanser, County Attorney, Billings, Montana 

Charles A. Bradley, Deputy County Attorney, appeared, 

Billings, Montana 

1- t? 1 'j r3/5 

Filed : 

Submitted: January 17, 1975 

Decided : 

FEB 1 1. 1995 
Mr. Justice Wesley Castles delivered the Opinion of the Court. 

This is an appeal by defendant Marlin Kolstad from a 

judgment of the district court, Yellowstone County, rendered 

upon a jury verdict, convicting him of burglary in the first 

degree. 

On August 19, 1973, at approximately 12:30 a.m., officers 

of the Billings Police Department responded to an alarm at the 

Carl Wiseman and Sons, Inc. warehouse. Upon arriving at the 

warehouse, they found a11 doors secure except for the door on 

the east side. They entered the building by this door and found 

the building dark inside. Inside the door they found a bolt 

cutter and a severed padlock. These two items were entered into 

evidence. The lights were turned on and a systematic search of 

the building was conducted. The search revealed Robert Johnson 

and defendant lying beneath a truck parked in the warehouse. 

There was beer in the hand of each of the parties. Neither of 

these men were employees of Wiseman and Sons, nor did they enter 

the warehouse with permission of any employee. Testimony at 

trial indicated only Johnson and defendant were at the scene when 

the officers arrived and there was no evidence of others being 

present either before or after the occurrence. 

Although defendant did not testify, his version of what 

occurred was set forth in State's Exhibit No. 12, an unsigned 

statement, the contents of which were read to the jury by a 

police officer for the city of ~illings. The statement indicated 

that Bob Johnson, his wife, Sandy Wirtman, and defendant were 

in Johnson's home when they heard a noise and noticed the windsnield of Johnson's car had been broken. They started in pursuit 

01 the supposed vandals when they saw them run into the warehouse. 

'l'he door being open, Johnson and defendant pursued them into the 

warehouse. As they were about to leave, they saw police cars 
outside and hid to prevent discovery of their presence the 

premises. No further testimony or evidence was presented to 

subs tantiate this explanat ion. 

In his opening statement to the jury, the prosecutor 

made the following comment which is alleged by defendant to be 

prejudicial, reversible error: 

"You will hear this officer, along with others, 

testify to this, that inside the building they 

found the lock from the building, cut, lying 

on the floor, and there will be a photograph 

of it. Near the lock was a set of bolt cutters 

and the bolt cutters had the letters S. M. on 

them. You will hear one of the officers testify that in the pickup truck, which was registered to the other man under the truck, inside 

the building, was a set of pipe cutters with 

the same initials, S.M." 

During the course of the trial, the prosecutor made an 

offer of proof to the effect that the Billings police officer 

on the stand would testify that he looked into a pickup truck 

parked approximately 2QQ yards from the warehouse and that he 

observed in plain view a set of pipe cutters, stamped with the 

initials S.M. The offer of proof further stated that other 

witnesses would testify that this is the same manner in which 

tools belonging to Swain & Morris are marked and that this pickup 

was registered to Mr. Johnson. The district court excluded any 

evidence that this was the manner in which Swain & Morris stamp 

their tools but, with the proper foundation as to the ownership 

of the pickup, would allow the pipe cutters to be admitted in 

evidence and to be examined by the jury. The State failed to 

establish this foundation and, as a result, the evidence was 

not presented to the jury. 

This appeal presents a single issue, namely, whether 

failure of the State to present evidence referred to in its 

opening statement constitutes reversible, prejudicial error 

warranting a new trial? We hold that it does not. 
This Court on two previous occasions discussed this 

very issue: State v. Zachrneier, 151 Mont. 256, 263, 441 P.2d 

737, 741; State v. Ruona, 159 Mont. 507, 513, 499 P.2d 797, 800. 

In Zachmeier, a prosecution for murder, the county attorney, in 

his opening statement, made a detailed recitation of an admission 

of guilt made by the defendant, which included: 

"'I then grabbed a silk stocking and tied it 

around her throat. I wasn't sure she was dead and 

I kept listening for a heart beat. I could not be 

sure she was dead so I went into the kitchen and 

got a butcher knife and pushed it into her heart. 

I listened for a heart beat and felt her pulse. I 

was sure she was dead so I left the house got into 

my car and went to the Lobby Lounge * * *. '" 

The admission, however, was found to be constitutionally defectlve. This Court recognized the highly prejudicial nature of 

this type of statement and remanded for a new trial. 

In Ruona, a prosecution for criminal possession of dangerous drugs, the prosecution made reference in its opening staternent to the jury to the effect that drugs had been found at 805 

S. 27th Street. Throughout the trial, the State made repeated 

attempts to introduce evidence concerning the house, which was 

characterized as a "hippy pad". This Court found there was a 

failure of proof by the State of a relationship between defendant and the named premises. The Court affirmed the conviction 

stating the test was: 

"'Is there a reasonable possibility that the inadmissible evidence might have ccntributed to the 

conviction? ' " 

In the instant appeal, defendant failed to object to 

these opening remarks. The district court specifically instructed the jury, prior to opening statements, that it was to disregard any statements of counsel not supported by the evidence 

and it was only to consider the testimony of the witnesses upon 

the witness stand and such exhibits as were admitted in evidence. The jury was reminded of this instruction at the close 
of the trial, and the written instruction went to the jury 

room. Except for the one sentence in the opening statement, 

no further comment regarding the pipe cutters was made within 

the hearing of the jury. 

The opening remarks of this case do not compare to the 

gravity of the remarks in Zachmeier. Therefore, we hold this 

reference in the opening statement was not of such a nature 

as to contribute to defendant's conviction. 

The judgment of the trial court is affirmed. 

We concur: .t 

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Chief Justice