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.

## 1995Mr. 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 inthe first degree. On August 19, 1973, atapproximately 12:30 a.m., officers of the Billings Police Department responded toan alarm atthe CarlWiseman and Sons, Inc. warehouse. Upon arriving atthe warehouse, they found a11doors secure except for the door on the east side. They entered the building by thisdoor and found the building dark inside. Inside the door they found a bolt cutter and a severed padlock. These two 

### itemswere 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 inthe 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 atthe scene when the officers arrived and there was no evidence of others being present either before or afterthe occurrence. Although defendant did not testify, hisversion of what occurred was set forth in State's Exhibit No. 12, an unsigned statement, the contents of which 

### were read to thejury by a police officer for the cityof ~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 inpursuit 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 sawpolice carsoutside and hid toprevent 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 tobe prejudicial, reversible error: "You 

### willhear this officer, along with others, testifytothis, that inside the building they found the lock from thebuilding, cut, lying on the floor, and there

### willbe a photograph of it. Near the lock was a setof bolt cutters and the bolt cutters had the letters S. M. on them. You 

### willhear one of the officers testifythat in the pickup truck, which was registered tothe other man under the truck, inside the building, was a setof pipe cutters with the same initials, S.M." During the course of the trial, the prosecutor made an offer of proof tothe effect that the Billings police officer
on the stand would testify that he looked into a pickup truck parked approximately 2QQyards from the warehouse and that he observed inplain view a setof 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 inwhich tools belonging toSwain & Morris aremarked and that thispickup
was registered toMr. Johnson. The district court excluded any evidence that thiswas the manner inwhich Swain & Morris stamp their tools but, with the proper foundation asto the ownership of thepickup, would allow the pipe cutters tobe admitted in evidence and tobe examined by the jury. The State failed to establish this foundation and, asa result, the evidence was not presented to the jury. This appeal presents a single issue, namely, whether failureof the State topresent 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, 151Mont. 256, 263, 441P.2d 737, 741; Statev. Ruona, 159Mont. 507, 513, 499 P.2d 797, 800. In Zachmeier, a prosecution formurder, the county attorney, in his opening statement, made a detailed recitation of an admission of guiltmade by the defendant, which included: "'Ithen 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 thekitchen and got a butcher knife and pushed it intoher heart. I listened for a heart beat and felther pulse. I was sure she was dead so I left thehouse got into my car and went tothe Lobby Lounge 

## * * 

## *.'" The admission, however, was found tobe constitutionallydefectlve. This Court recognized thehighly prejudicial nature of thistype of statement and remanded for a new trial. In Ruona, a prosecution for criminal possession of dangerous drugs, theprosecution made reference in

### its opening staternent tothejury tothe effectthatdrugs had been found at805 S. 27th Street. Throughout thetrial, the Statemade 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 tothe conviction?

## '" In the instant appeal, defendant failed toobject to these opening remarks. The district court specifically instructed thejury, prior toopening statements, that it was todisregard any statements of counsel not supported by the evidence and it was only toconsider the testimony of thewitnesses upon the witness stand and such exhibits as

### were admitted in evidence. The jury was reminded of this instruction atthe closeof the trial, and the written instruction went tothejury
room. Except for the one sentence inthe 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 inthe opening statement was not of such a nature
as tocontribute todefendant's conviction. The judgment of the trialcourt is affirmed.

Weconcur: .t *;,"
p' *" , lr t ". .,rnA ,> . ,-L ---,- --~;-LY%L. 

# ---- ----i---ff2*

. Chief Justice