NO. 94-458

IN THE SUPREME COURT OF THE STATE OF MONTANA

1996

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DUANE STUIT,

Defendant and Appellant.

APPEAL FROM: District Court of the Thirteenth Judicial District,

In and for the County of Yellowstone,

The Honorable Robert W. Holmstron, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

William F. Hooks, Attorney at Law,

Appellate Defender Office, Helena, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General,

Patricia J. Jordan, Assistant Attorney General,

Helena, Montana

Dennis Paxinos, Yellowstone County Attorney,

Billings, Montana

Filed:

Submitted on Briefs: May 23, 1996

Decided: July 11, 1996
Justice Charles E. Erdmann delivered the opinion of the Court.

Defendant Duane Stuit appeals from the judgment of the

Thirteenth Judicial District Court, Yellowstone County, adopting

the j U*Y verdi.ct finding him guilty of felony criminal

endangerment. We affirm.

The issues on appeal are as follows:

1 . Did the District Court err in permitting the police

officer to testify as to the date of the shooting and the identity

of the shooter based on out-of-court statements made to him by the

mother and the daughter?

2 . If the District Court erred in admitting hearsay

testimony, was it harmless error?

FACTS

In late December 1992, a Billings Police Officer was

dispatched to the residence of Duane Stuit to investigate a

disturbance. Stuit lived there with his common-law wife, Sharon

McLain, and her two young children. While the officer was

investigating the disturbance, he observed bullet holes in the wall

and in the door jamb leading to the children's bedroom. The bullet

holes were not the basis for the disturbance complaint which

brought the officer to Stuit's home.

Further investigation revealed that Stuit had, at an earlier

time, fired at least five shots into the wall and approximately

another three shots into the children's door jamb while they were

sleeping. This information was related to the officer primarily by

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Sharon McLain, although the officer apparently also spoke with

Sharon's daughter, Shannon.

Stuit was charged with criminal endangerment as a result of

the shooting incident. The defense attorney filed a motion in

limine requesting that at trial the State be precluded from

eliciting testimony from the officer which was anticipated to

identify Stuit as the shooter based upon statements made to the

officer by others. The State responded that while Sharon was

unavailable for trial, Shannon would testify. The judge inquired

as to whether Shannon would testify first and was assured she

would. The District Court, in ruling on the motion in limine,

stated that it was "an evidentiary matter, [and] if it comes up, it

can be ruled upon during the trial" and therefore refused to grant

the motion.

Although Sharon was unavailable for trial, Shannon did

testify. At trial Shannon testified that she saw Stuit shoot the

gun a maximum of five times from the couch into the wall and then

heard at least three shots after she was in bed. Shannon testified

that this shooting occurred in the month of December, but did not

testify as to the specific date. Over an objection on hearsay

grounds, the police officer testified that the shooting occurred on

or about December 14. The officer also testified that Stuit was

the shooter, but no specific objection was made to this testimony

at trial. Stuit was convicted of criminal endangerment and now

appeals.

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ISSUE 1

Did the District Court err in permitting the police officer to

testify as to the date of the shooting and the identity of the

shooter based on the out-of-court statements made to him by the

mother and the daughter?

Stuit argues that the officer's testimony constituted

inadmissible hearsay and that the lower court abused its discretion

in admitting the testimony. The standard of review for evidentiary

rulings is whether the district court abused its discretion. State

v. Riley (1995), 270 Mont. 436, 440, 893 P.2d 310, 313; State v.

Santos (19951, 273 Mont. 125, 137, 902 P.2d 510, 517. Questions of

admissibility of evidence are left to the sound discretion of the

trial court and will not be overturned absent a showing of abuse of

discretion. State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.Zd

1257, 1263.

The State argues that Stuit waived his opportunity to appeal

the admission of the officer's testimony identifying the shooter

because the defense counsel failed to object to this question

during direct examination. We have stated that we will not put a

trial court in error where that court has not been given the

opportunity to rule on the admissibility of evidence and to correct

itself. State v. McCord (1992), 251 Mont. 317, 325, 825 P.2d 194,

200.

In this case, Stuit's motion in limine requested that the

District Court exclude the anticipated testimony of the officer

which would identify the shooter based on out-of-court statements

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made to him by others. A motion in limine preserves trial error

for appeal if the motion is sufficiently specific as to the basis

for the objection. See State v. Brown (1984), 209 Mont. 502,

506-07, 680 P.2d 582, 584-85; State v. Weeks (1995), 270 Mont. 63,

85, 891 P.2d 477, 490. This motion was sufficiently specific to

preserve the trial error for appeal and thus the court's admission

of the officer's testimony identifying Stuit as the shooter is

properly before this Court, even though there was no specific

objection at trial. The officer's testimony as to the specific

date of the shooting was admitted over objection at trial and is

also properly preserved for appeal. Section 46-20-701, MCA.

Hearsay is a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted. Rule 801(c), M.R.Evid.

The police officer's testimony at trial as to the identity of the

shooter and the specific date of the offense was admittedly based

on out-of-court statements made to him by Sharon McLain and her

daughter, Shannon. The officer had no personal knowledge of the

alleged incident which had occurred approximately two weeks prior

to his investigation.

The testimony was offered to prove that Stuit had fired a gun

inside his residence thereby making bullet holes in the wall and

the door jamb of the children's room on or about December 14, 1992.

We hold that the officer's testimony regarding the specific date of

the shooting and his testimony as to the identity of the shooter

were hearsay. See State v. Alexander (1994), 265 Mont. 192, 875

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P.2d 345 (testimony by social worker relating what he had been told

by an alleged victim as to the location of the offense constituted

inadmissible hearsay); State v. Camitsch (1981), 192 Mont. 124, 626

P.2d 1250.

The State goes on to argue that the officer's testimony

regarding the specific date of the offense is admissible as an

exception to the hearsay rule pursuant to Rule 804(a) (3),

M.R.Evid., because Shannon was "unavailable" as a result of her

lack of memory on that subject matter. The admission of hearsay

evidence under Rule 804 first requires a determination that the

declarant is "unavailable" under the rule. In re Marriage of

Sarsfield (1983), 206 Mont. 397, 407, 671 P.2d 595, 601. This

determination is a preliminary question of fact for the trial court

to decide. State v. Nielsen (Or. 19931, 853 P.2d 256, 261. The

State had the burden of proving to the trial court by a

preponderance of the evidence that Shannon was unavailable due to

her lack of memory of the specific date of the shooting. Nielsen,

853 P.2d at 261.

Here the State failed to raise the issue of Shannon's

unavailability due to a lack of memory at the trial court level.

It did not ask Shannon if she knew or was able to remember the

specific date of the shooting. It only now attempts to argue that

she would have testified as to a lack of memory. The admission of

the officer's testimony as to the date of the shooting as a hearsay

exception because of Shannon's unavailability is therefore being

raised for the first time on appeal and is inappropriate for

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consideration by this Court. Fandrich v. Capital Ford Lincoln

Mercury (1995), 272 Mont. 425, 431, 901 P.2d 112, 115-16.

We hold that the testimony of the officer as to the identity

of the shooter and the specific date on which the shots were fired

was inadmissible hearsay and the District Court erred in admitting

this testimony.

ISSUE 2

If the District Court erred in admitting hearsay testimony,

was it harmless error?

The admission of the hearsay testimony by the officer does not

automatically entitle Stuit to have his conviction reversed. See

Rilev, 893 P.2d at 313. Section 46-20-701(l), MCA, provides that

"[n]o cause shall be reversed by reason of any error committed by

the trial court against the appellant [convicted person] unless the

record shows that the error was prejudicial."

Stuit argues that the admission of the officer's hearsay

testimony was prejudicial as it identified him as the shooter and

specified the date of the incident. Stuit's defense was that

someone else had committed the offense and that it occurred early

in December when there were other individuals living in the house.

He testified that he had himself discovered the bullet holes on

December 10, 1992, the same date the individuals departed from the

house. Stuit asserts that the admission of the officer's testimony

further prejudiced him because credibility was a key issue at trial

as Shannon was the only witness who testified from personal

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knowledge of the incident. He argues that the officer's testimony

was used to resolve questions of credibility in favor of Shannon.

We have previously held that in a criminal case "if prejudice

is alleged, it will not be presumed but must be established from

the record that a substantial right was denied." State v. Wells

(1983), 202 Mont. 337, 349, 658 P.2d 381, 388. The test of

prejudicial error is whether "beyond a reasonable doubt the error

did not affect the outcome of the trial." State v. Alexander

(1994) I 265 Mont. 192, 198, 875 P.2d 345, 349 (citing Chapman v.

California (1967), 386 U.S. 18, 26, 87 S. Ct. 824, 829, 17

L. Ed. 2d 705, 711, reh's denied (1967), 386 U.S. 987, 87 S. Ct.

1283, 18 L. Ed. 2d 241).

Shannon testified the offense occurred in the month of

December 1992. She further testified that she was sitting on the

couch with her mother and Stuit when he shot the rifle five times

into the wall. Thus, Shannon testified from personal observation

as to the shooting, the identity of the shooter, and the

approximate date. The admissible testimony from the officer that

there were at least seven bullet holes in the wall and door jamb,

and that from his experience the five bullet holes in the wall

could have been made from someone sitting on the couch in the

living room, corroborated her testimony. He also testified that he

had recovered a .22 rifle from the bedroom Sharon and Stuit had

shared. From Shannon's testimony as to her personal observations

and the admissible corroborating testimony of the officer, the

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al,U U.&U LLIC ““““L-L”ayIAS YLLCIIYGL. LllL “LL.,._\lLL ” CLYC.LLLL”“~ UY L”

the specific date was irrelevant and harmless as there was

sufficient evidence, beyond reasonable doubt, upon which the jury

could properly convict absent this testimony.

Cumulative evidence is additional evidence of the same

character to the same point. Section 26-l-102(4), MCA. The

officer's testimony as to the identity of the shooter after

Shannon's testimony was merely cumulative and thus harmless. See

State v. Graves (1995), 272 Mont. 451, 901 P.2d 549; State v. Kao

(1990), 245 Mont. 263, 800 P.2d 714; State v. Woods (19861, 221

Mont. 17, 716 P.:!d 624.

We hold therefore that the admission of the officer's hearsay

testimony that Stuit had committed the offense and that it occurred

on a specific date did not result in prejudice to Stuit and was

therefore harmless error.

Affirmed.

Justice

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