No. 84-339 INTHE SUPREME COURT OFTHE STATE OF MONTANA 1985

STATE OF MONTANA, Plaintiff and Respondent,

-vsDON LIAS, Defendant ancYAppellant.

APPEAL FROM: DistrictCourtof the FirstJudicial District, Inand for the County of Lewis & Clark, TheHonorable GordonBennett, Judge presiding.

COUNSEL OF RECORD:

ForAppellant: CharlesE. Petaja; Petajaand Smoyer, Helena, Montana

ForRespondent: Hon. Mike Greely, Attorney General, Helena, Montana MikeMcGrath, CountyAttorney, Helena, Montana CarolynA. Clemens, Deputy CountyAttorney, Helena



### --------- Submittedon Briefs: June 13, 1985 Decided: September 26, 1985

Filed: 

## SEP26

## 5985

---------- Clerk

### Mr. Chief Justice J. 

### A. Turnage delivered the Opinion of 

### the Court.The appellant, Don Lias, was convicted in Justice Court on the charge of driving under the influence. He appealed to District Court, and a jury returned a verdict of guilty. He

now appeals to this Court. We affirm. At about 9:00 p.m. on May 28, 1983, appellant, in search of hisbusiness partner,went to a 

### stock car race near Helena, Montana. He purchased one beer and then a second. After purchasing the second beer he was involved in a 

### fight, and the beer was spilled on him. Hewas injured in the fight and suffered severe pain and disorientation. He then found his business partner and left to gohome. He contendshe did not drink anymore that night. Between 11:OO p.m. and 12:OO midnight, a highway patrolman found appellant asleep in a vehicle parked in the median of Interstate 15. 

### Thevehicle lightswere on, and the enginewas running. When appellant awoke, the patrolman found him somewhat impaired in speech and mobility. The patrolman detected a strong smell of alcohol. After some discussion and informing himself of the situation, the patrolman arrested appellant for driving under the influence. Appellant refused a field sobriety test. He showed indications of belligerence and noncooperation. Because of appellant's belligerence, the patrolman radioed for help. An assisting officer arrived, and appellant was taken to jail. In Justice Court, on August 30, 1983, appellant was found guilty of driving under the influence. He appealed to the District Court, and on April 9, 1984, a six-person jury

### returned a verdict of guilty. Appellant appeals to this Court.The issues presented are: 1. 

### Whether certain testimony elicited by 

### the prosecutor was in violation of an order granting a motion in limine to preclude certain testimony and, if so, absent timely objection, whetherwas itplain error,depriving appellant of

a fair trial. 2. 

### Whether sufficient evidence supports the verdict of guilty beyond a reasonabledoubt. The first issue is whether certain testimony violated

an order precluding mention of certain matters and, if so, whether, absent a timely objection, it falls within "plain error." The testimony violated the order, but no objection

was made. We determine that the plain error doctrine does not apply. On appeal from Justice Court to District Court, a.ppel- 'ant filed amotion in limine to preclude: 1. 

### Any reference to a find.ingof guilty in Justice Court. 2. 

### Any reference,by way of impeachment or rebuttal or otherwise, to any statements made by Defendant in Justice Court. A 

### minute entry is the only record 

### of a ruling on the motion in limine. It stated that the motion was granted. The State argues that it understood the granting of the motion to not preclude evidence of statements made by the appellant under oath for purposes of impeachment. The motion, according to the minute entry of the clerk of court,

was granted in its entirety and prohibited such testimony. However, the record as to precisely what the court ruled.in chambers with relation to the motion in limine is notcomplete,as no record exists of the discussion and ruling on the motion other than the clerk of court's minute entry. Rule 613,Mont.R.Evid., authorizes the use ofprior inconsistent statements for thepurpose of impeachment. The questioned testimony was testimony elicited on cross-examination and testimony by a rebuttal witness called to impeach appellant by a prior inconsistent statement. The subsequent inconsistent statementwas elicited by the prosecution on cross-examination: 

### Q. Isn't it true that on August 30, 1983, while under oath you stated that you had had nothing to drink on May 28, 1983? A. Idon't think so. In response to a question regarding statements made by appellant on August 30, 1983,concerningdrinking,the rebuttal witness, called to impeach the above testimony, stated: A. He said, no, he didn't, he hadn't consumed any alcohol that day. August 30, 1983,was the date of the trial at Justice Court. All reference to statements made by the appellant at that trial were prohibited by the granting of the motion in 1imine

# . It wa.s error for the prosecution to elicit the statementon cross-examination,and itwas error to introduce the rebuttal testimony. However, such errors are, in this case,harmless errors. The absence of appellant's objection to or the court's intervention in the cross-examination and rebuttal testimony suggests that counsel and the court recognized that the motion in limine could not properly prevent the use of prior inconsistent statements for impeachment purposes under Rule 613,M0nt.R.Evi.d. Here the substantial rights of the appellant were not affected. Viewing the entire record, thequestioned testimony could only have had little, if any, damaging effect on the jury determination. If error, it was harmless error, and the "plain error" doctrine does not apply. Errors not affecting substantial rights shall be disregarded. Section 46-20-702,MCA. The second issue is whether substantial evidence supports the juryverdict. In applying the substantial evidence test to determine whether there was sufficient evidence to support the jury verdict, this Court is governed by established principles. In applying the test the evidence is viewed in a light most favorable to the prevailing party. The weight of the evidence and the credibility 

### of the witnesses are exclusively the province of the trier of fact. If the evidence conflicts, it is within the province of the trier of fact to determinewhich shall preva-il. The test is met if a reasonable mind would accept the evidence as supporting the conclusionreached. Statev. Green (Mont. 1984), 685 P.2d 370, 371-372, 41 St.Rep. 1562, 1564; State v. Johnson (1982), 197 Mont. 122, 127, 641 P.2d 462, 465; State v. Martinez (1980), 188 Mont. 271, 281-282, 613 P.2d 974, 980. In this case substantial evidence supports the jury verdict. Appellantwas found asleep in his vehicle parked in

an interstate median. The vehicl~elights were on, and the engine was running. He was impaired in speech and mobility and therewas a strong smell of a.lcoho1about him. He showed signs of belligerence and noncooperation. Affirmed.We concur:

JusticesMr. JusticeWilliam E. Hunt, Sr., dissenting:

I dissent and would reverse. After his conviction in Justice Court, where he appeared pro se, the defendant appealed: to the District Court. Prior to trial., defendant moved the court and the court granted a motion in limine to prevent all references in the trial de novo in the above

cause toany of the following: 1. Any reference toa finding of guilt inJustice Court. 2. Any reference, bl7 way of impeachment or rebuttal or otherwise, to any statements made 

### by 

### -- defendant inJusticeCourt. There arethree issues in thiscase. They are: 1. Whether reversible error was committed by the prosecutor, when, during cross-examina.tj.on of the defendant and without objection by the defendant, he asked questions that were in violation of the order granting a motion in limine

# . 2. Whether the testimony admitted without objection in violati.on of the court's order was "plain error" depriving appellant of a fairtrial. 3. Whether sufficient evi-dencesupports the verdict of guiltybeyond a reasonable doubt. A motion in liminemay be used toexclude evidence that,

even if relevant, has probative value substantially outweighed by thedanger of unfair prejudice. See, Rule 403, M.R.Evid. Authority for the granting of a motion in limine rests with the inherent power of the court to admit or exclude evidence and to take such precautions as are necessary toafford a fairtrial for allparties. Wallin 

### v.

### Kinyon Estate (1974)

## , 164Mont. 160, 1.64-1.65,519 P.

### 2d 1236, 1238,citing 94

### A.JJ.R.2d 1087. As ProfessorCrowley has stated: Themotion in limine is not provided for in either the statutesof Montana or the Rules of Civil Procedure. It has, however, been recognized as a valid and useful procedure by the Montana Supreme Court in several cases !the first and principal decision endorsing its use was Wallin v. Kinyon Estate, 164Mont. 160, 519 P.2d 1236). The Latin phrase "in limine" means "at the threshold" or "in theebeginning" and was used at the early common law to denote motions that were preliminary in character. Currently

## ,however, the term is used to denote motions made before or even during trial to forbid certain lines of inquiry or limit or prohibit the use 

### of particular evidence." William F. 

### Crowley, Montana Pleading and Practice Forms,p. 99 (1983). The prosecution gave as its reason for asking the question that raised the first issue in this case, as that its understanding of the court's ruling was that the State could not present evidence that appellanthad been convicted in Justice Court, but that it could, for purposes of impeachment,present evid-enceof statements made by 

### appel-lant under oath. I

### think that the motion isplain on its face and it would be difficult to believe that there could be any mention or reference to the Justice Court trial for any purpose, incl-udingimpeachment. The motion was argued in chambers. The record is a minu-teentry that states, 

### "lplresent in chambers, out of the presence of the jury, were the Deputy County Attorneys

# . .

# . attorney for the defendant 

# ...

# . Upon presentation the Court denied the motion to dismiss and granted themotion in limine." The prosecution's argument that its understanding of the court's ruling was that the State could not present evidence that appellant had been convicted in Justice Court, but that it could, for purposes of impeachment, presentevidence 

### of statements made 

### by appeilant under oath is not persuasive. As this Court has stated, "[ilt is not the duty of the prosecution to make independent determinations concerning the admissibility of evidence once the court rules such evidence is inadmissible. Willful attempts 

### by counsel to place excluded evidence before the jury may result not only in amistrial, but reversal." Statev. Bain (1978),176 Mont. 23, 29, 575 P.2d 919, 923. Defendant argues that he did not object for the reason that 

### an objection or 

### a motion to strike would not have cured the damage done to defendant in violation of his substantial rights. He cites a recent case of this Court finding prejudicial and reversible error, because an admonition by the court to disregard the informationwould not suffice to

remove the prejudice from the minds of the jurors because "the goose is already cooked." Workman v. McIntyre Construction Company (Mont. 1980), 617 P.2d 1281, 1285, 37 St.Rep. 1637, 1.642. Defendant also argues that the conduct of the prosecution in introducing prejudicial evidence in violation of the court's ruling, has deprived him of a fair and impartial trial, and is therefore grounds for a new trial. Bain, 575 P.2d at 923, this Court said that 

### "[iln 

### In 

### - determining whether such questions are soprejudicial to the defendant as to require reversal, this Courtmust look (1)to the reasonable inference to be drawn from the question, State

v. Toner, [(1953), 127 Mont. 283, 263 P.2d 9711 and (2) whether such repeated attempts to offer excluded evidence might have contributed to the conviction. State v. Langan

(1968),151Mont. 558, 445 P.2d 565."

### What is the inference to be drawn from the questions asked of appellant in this case? Since there was no referencedirectly to the Justice Court trial and conviction, the questions and answers on cross-examinationof the witness on rebuttal must show indirectly that defendant was prejudiced. In District Court on cross-examination, in response to the questions of the prosecution, the appellant testified as follows: Q. 

### Mr. Lias, did you on August 30th, 1983, while 

### you were under oath make certain statements regarding 

### the same issues that we're here discussing today? A. OnAugust 30? Yes. Q. 

### Isn't it true that on August 30th, 1983, while under oathyou stated thatyouhad nothing to drink onMay 28th of 1983? A. I

### don't think so. Q. 

### Mr. Lias, isn't it true that on August 30th, 1983 

### you stated that under oath, and, once again, that you had no idea how the smell of alcohol got on yo;r body on May 28th, 1.983? A. The testimony onAugust 30thyou say? (Emphasisadded.) 

### - Q. Yes. The rebuttal.witness testified as follows: Q. 

### Okay. Dan, did you have an opportunity on or about August 30th to hear some statements made by the defendant in this case? A. Yes, Idid. 0. 

### And during the time that you heard those statements, do 

### you recall whether or not he was 

### - ---- under oath? A. Yes, he was. (Emphasisadded.) I

### would hold that these kind of questions raise a strong inference that the jury might well conclude that the defendant had been tried in another court and that his testimony was conflicting. The actions of the prosecution were done inviolation of the order of the court. As to the second part of the Bain rule, that "whether such repeated attempts to offer excluded testimonymight have contributed to the conviction" we must only decide herewhether the one and very successful attempt to get the evidence inwas a contributing factortotheconviction. The evidence in thiscasewas conflicting. The arrestingofficer and the deputy that came to his assistance both testified that the defendant was under the influence of alcohol and based their opinion on training and experience in dealing with persons under the influence of alcohol. Ms. EdieWood,

a witness called by the defense testifiedthat the defendant had been in a fight that day and during that fight the beer thathe held inhishand was spilledallover him. After the fight shehelped him up from theground. She did not see him drink any more beer. She testified that defendant had been hitand kicked severely duringthe fightandwas unsteady and complaining about injuriestohisbody. He toldher thathe thought thathewasalrightexcept forhishand. She did not

see him again thatnight. Another witness called by the defense, Roger Hayle, the partner of the defendant inthe egg business, testified that he saw thedefendant thatday and thatthedefendant toldhim that he had been in a fight and complained of his hand. Hayle testified that defendant's hand was swol.len up to the pointwhere you couldn't seethemuscles. Henotedbumps and bruises on the head of the defendant. He offered to drive thedefendanttothedoctor orhome but thedefendant refused because he needed his truck to get towork. The defendant told him that he had to be atwork by 6:00 a.m. the next morning so he would have togo home inhis truck sothat he would have it to go towork. Hayle testified that he had worked as a bartender and had some experience with seeing intoxicated people and in his opinion the defendant was not intoxicated when he saw him atthe races. Hetestifiedthat

### he offered to drive the defendant home because of his injuries and not because he thought he was under the influence. The trial judge who was in 

### the best position to weigh the effects of the testimony was not called upon to rule in this matter because there was no objection. We are called upon to decide 

### a question that was not before the trial judge, but is raised for the first time on appeal. Ibelieve that the adverse effect of the testimony obtained for the purpose of impeachment may well have influenced the jury. The defendant's failure to object does not overcome the prejudice he suffered as a result of the prosecution's violation of the court order that there cannot be 'Yalny reference,by way of impeachment or rebuttal or otherwise, to any statementsmade by theDefend-antin JusticeCourt." I

### do not consider the second issue of plain error or the third issue of whether there was sufficient evidence to support the verdict of guilty beyond a reasonable doubt because of my belief that there was reversible error committed by the prosecutor. I

### would reverse.

Mr. Justice John C. 

### Sheehy, concurs in the foregoing dissent ofMr. JusticeHunt.