No. 91-295 IN THE SUPREME COURT OF THE STATE OF MONTANA 1992

THE STATE OF MONTANA, Plaintiff and Respondent,

-vsMICHAEL THOMAS STEWART, Defendant and Appellant.

APPEAL FROM: DistrictCourt of theNineteenth Judicial District, In and for the County of Lincoln, The Honorable Robert S. Keller, Judge presiding.

COUNSEL OF RECORD: For Appellant: Martin R. Studer argued, Attorney at Law, Bozeman, Montana James H. Goetz, Goetz, Madden & Dunn, Bozeman, Montana For Respondent: Hon. MarcRacicot,AttorneyGeneral,Helena,Montana Micheal Wellenstein argued, Assistant Attorney .--General,Helena, Montana -~*,Scott 

### B. Spencer, County Attorney, Libby,Montana

Submitted: May 4, 1992

a Decided: June 23, 1992

I ClerkJustice Fred J. Weber delivered the Opinion of the Court.



### A jury from the Nineteenth Judicial District Court, Lincoln County, convicted the defendant, Michael Thomas Stewart (Stewart) of theft, attempted theft, and forgery. Stewart appeals. We affirm in part and reverse in part. The issues raised for review are restated as follows:

(1) Did the District Court abuse its discretion by limiting the scopeof Stewart's cross-examination of Mitchell Hicks (Hicks)? (2) Did the District Court prejudice Stewart's defense by excluding testimony offered by Arlene Peterson (Peterson) to impeach Hicks? (3) Did the District Court abuse its discretion by allowing the State to introduce a previously undisclosed tape-recording to impeach Roger Kensler (Kensler) on rebuttal? (4) Was Stewart denied his right to effective assistance of counsel? Stewart, former police chief of Troy, Montana,was convicted

on three separate charges;theft,attempted theft and forgery. The theft charge in this case involves Stewart's attempt to obtain clear title on a 1978 Ford Bronco by depriving the Federal Deposit InsuranceCorporation (FDIC)of its lien on thevehicle. The count of attempted theft arises from Stewart submitting a fraudulent claim to the Highway Department for window damage to the Bronco whichhe alleged occurred in ahighway construction area. Finally, the forgery count is based on Stewart signing Hicks' name on a statementStewart submittedto theHighwayDepartment inconnection 2with the fraudulent window damage claim. In 1985, Stewart financed a 1978 Ford Bronco through the Yellowstone State Bank of Lander, wyoming. When the Yellowstone State Bank failed, the FDIC succeeded to the ownership of the lien

on Stewart's Bronco. At trial, Tom Bales (Bales), owner of Bales Auto Acres of Lander, Wyoming, testified that he agreed to assist Stewart in improperly obtaining clear title to the vehicle. Although Bales admitted he never stored the vehicle; in November 1989,he falsified a storagebill, and filed a storage 

### lien on the Bronco. Because the lien exceeded the value of thevehicle, FDIC released its lien on the Bronco. Bales received a clear certificate of title, and transferred title to Hicks. ~icks then transferred title to Stewart at Stewart's request. Hicks testified thathe never negotiatedwith Stewart for the purchase of the vehicle. In addition, Hicks testified he had no knowledge that Bales placed the title in his name until Stewart

came to Hicks and directed him to transfer the document into Stewart s name. Next, the State presented evidence 

### that Stewart submitted a false claim to the ~ighway Department 

### in November 1989, Stewart claimed a rock struck the vehicle's rear window as he drove the Bronco on Highway 2 below a construction blast area. 

### Stewart stated that Hicks was a passenger 

### in the Bronco at the time the rock struck the vehicle. At trial, Stewart maintained his story that a rock from the blast area had cracked the vehicle's window. However,he testified the damage actually occurred in June or July1989, 

### not November 1989. 

### Hicks, on the other hand, testified that no damage ever occurred to the vehicle while he was a passenger; and that the vehicle's window was already broken in May 1989, 

### when Hicks first met Stewart. In addition, Hicks testified that in a previous conversation, Stewart had stated that the construction on Highway 2

### presented a prime opportunity for submitting a false claim to the Highway Department. Finally, the State presented evidence that Stewart forged Hicks' name on a statementhe submitted to the Highway Department in connectionwith the glass damage claim. Stewart testified that he signed Hicks' name to the statement with Hicks' permission. Hicks denied giving Stewart permission to write his signature on the statement. I Did the District Court deny Stewart's right to confrontation and abuse its discretionby limiting the scope of Stewart's crossexamination of Mitchell Hicks? Hicks, a former reserve law enforcement officer in Troy, Montana, disclosed information to the Lincoln County Sheriff's Department which led to Stewart's arrest. Thereafter, Roger Kensler, Mayor of Troy, suspended Hicks. Consequently, Hicks brought a wrongful discharge suit against the city. At trial, the District Court denied Stewart's attempt to introduce the details of this wrongful discharge suit. Stewart contends this lawsuit established bias and motive for Hicks tofabricate his testimony. Thus, the court improperly limited his cross-examination. Admissibility of evidence is within the sound discretion of the trial court and will not be reversed absent abuse of discretion. State v. Hall (1990), 244 Mont. 161, 169, 797 P.2d 183, 188. While evidence establishing bias or a witness's motive to fabricate is properly admissible; here, the lower court determined evidence of a separate civil action between Hicks and the city established neither bias nor motive to fabricate. Stewart has failed to persuade this Court that the District Court abused its discretion. Next, Stewart claims this restriction on cross-examination denied him his right to confrontation guaranteed by the Sixth Amendment to the United States Constitution, and Article 11, Section 24 of theMontana Constitution. This Court haspreviously held that limiting the scope of cross-examination does not necessarilyviolate an accused's right to confrontation. Sloan

### v. State (1989), 236 Mont. 100, 104-105, 768 P.2d 1365, 1368. Here,

we conclude the court properly restricted Stewart's crossexamination of Hicks based on the limited probative value of the testimony. We hold the District Court did not abuse its discretion or violate Stewart's right to confrontation by Limiting Stewart's cross-examination of Hicks. I1 Did the District Court prejudice Stewart's defense byexcluding testimony offered by Peterson to impeach Hicks? Hicks testified that he never negotiated with Stewart to purchase the Bronco, and never authorized Stewart to forge his signature 

### on the damage claim. Further, Hicks testified that he had never discussed either of these matters with Arlene Peterson. Laterduring the trial,StewartcalledMs. Petersonto impeach Hicks1testimony. Peterson testified that shehad discussed these matters with Hicks, and that Hicks had authorized Stewart to sign his name to the damage claim. However, on the basis of hearsay, the court prohibited Peterson from testifying Hicks 

### had informed her that he 

### was negotiating with Stewart for the purchase of the Bronco. Stewart contends Peterson's testimony was evidence of a prior inconsistent statement by a prosecution witness, and thus proper impeachment. Rule 801(d)(l)(A), M.R.Evid. The State contends that the court's exclusion of this testimony is harmless error. We disagree. Here, 

### the record reveals that the State's case rested largely on the testimony presented by Hicks. Thus,the lower court's exclusionof testimony presented to impeachHickswasprejudicial to Stewart's defense and

an abuse of discretion. We hold the exclusion of Peterson's testimony prejudiced Stewart's defense. We reverse on this 

### issue. I11 Did the District Court abuse its discretion by allowing the State 

### to introduce an undisclosed tape-recording for impeaching Kensler on rebuttal?At trial, Roger Kensler denied that Hicks was suspended for disclosing information leading to Stewart's arrest. On rebuttal, theState impeachedKenslerlstestimonyby introducing apreviously undisclosed tape-recording. On the tape, Kensler indicated that Hicks was suspended for blowing the whistle on Stewart. Stewart contends the court should have excluded this tape due to the State's failure to disclose the tape prior to trial under 5 46-15- 322, MCA. Stewart further contends the recording was irrelevant and improperly admitted under Rule 403, M.R.~vid., because its prejudice outweighed any probative value. We disagree. First, the Statedid notviolate 5 46-15-322,MCA, by failing to disclose the tape. Section 46-15-322,MCA (1989), states in part:



# . . . , the prosecutor shall make available to the defendant 

# . . . the followingmaterial and information within his possession or control: (a)a list of thenames and addresses of all persons whom the prosecutor intends to call as witnesses in the case-in-chief, together with their relevant written or recorded statements; 

## . . 

# . Here the tape recording was used to impeach testimony of Kensler, a defense witness. Thus 5 46-15-322(a), MCA, does not require disclosure. Next, as impeachment evidence, the tape was relevant and probative, although it did not support the criminal charges against Stewart. Finally, the tape did not contain exculpatory evidence which required disclosure under 5 46-15- 322(e), MCA. We hold the courtdid not abuse its discretion in allowing the Stateto introduce

### apreviously undisclosed tape to impeachKensleron rebuttal. IV Was Stewart denied his right to effective assistance of counsel? To sustain a claim of ineffective assistance of counsel, defendantmust show deficient performance which so far prejudiced the defense that it deprived the defendant of a fair trial. strickland v. washington (1984), 446 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. 

### Stewart claims four instances of ineffective assistance of counsel. First,Wilfred and Faye Palmer, owners of abody shop inTroy, Montana, testified that prior to his negotiations with Bales, Stewart solicited a fraudulent damage estimate from them for the purpose of filing

### amechanic's lien on the Bronco. Stewart claims this is "other crimes1' evidence. As such his attorney was deficient 

### in failing to object, and 

### its admission deprived Stewart of a 

### fair trial. Next, Stewart contends defense counsel failed to object when the prosecutor asked Hicks about an alleged sexual relationship between defense witness Loretta ~ingleyand Stewart. Further, defense counsel. failed to object when, without basis, the prosecutor asked Stewart if he abused juveniles during arrest. Stewart claims these comments were highly inflammatory and prejudicial and deprived Stewart of a fair trial. We disagree. Here,testimony fromWilfred and FayePalmerwas properly admitted,not as evidence of other crimes, but as part ofthe corpus delicti in Stewart's continuing scheme to defraud the FDIC of its lien on the Bronco. Next, testimony regarding the sexual relationship between Stewart and Hingley was properly admissible to show Hingley's motive to testify falsely. Finally, the prosecutor's question insinuating Stewart abused juveniles in custody was irrelevant to the crimes charged. In all above cited instances,we find that defense counsel's failureto object did not prejudice Stewart's defense,nor deprive Stewart of a fair trial. The final instance of ineffective assistance of counsel claimed by Stewart involves defense counsel's failure to object to inappropriate remarks made by the prosecutor during closing arguments. A portion of the State's closing argument is set out below: And remember, ladies and gentlemen, these sorts of cases are tough. Public officials, which Mike Stewart was, should have the public's highest respect and regard and they shouldn't be doing illegal things. They shouldn't be involved in trying to steal things likeandmake false claims. They shouldn't be involved in making false claims because more thananything, itdestroys thepublic trust. Youwant a crooked cop. this is a crooked cop and he was causht. And the only way thatyou,we can stop this is for you to render a proper verdict in this case. If you, with the evidence before you, say to this man, you are not guilty, you are saying go out and be a crooked cop,we like crooked cops. And the only message that you can say, it is overwhelming that he is that. He is a thief. And he is a liar. And the verdict that you should render on what youhave heard in these sorts of casesbased onwhat you have heard here isyou are guilty of theft on the Bronco



# . . . Mr. Stewart,he isMr. Stewart,Mr. Stewart, you are a crook. You are quiltv. (Emphasisadded.) This Court discussed improper comments by the prosecution in Statev. Musgrove (1978), 178Mont. 162, 582 P.2d 1246. That caseinvolved an interpretation of Disciplinary Rule 

### No. 7-106(C), adopted in 1973. Rule No. 7-106(C)(4) provided in part: 

### Inappearing 

### inhisprofessional capacitybeforea court, a lawyer shall not: (4) Assert his personal opinion as to the justness of a cause,asto the credibility of awitness, as to the culpability of a civil litigant, or as to the quilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matter stated herein. There we held that it is highly improper for a prosecutor to express a personal opinion as to the defendant's quilt 

### or innocence. We stated: It is well for attorneys to remember that while in closing argument,theymay argue and commentupon the law of the case in the instructions, as well as upon the evidence of the case. 

## . 

# . . [However,thatpermission is limited.] 

# . . 

# . It is enough to say that in most instances, it 

### ishighly improper foranattorney in final argument to characterize the testimony of a witness as lies or the party or a witness himself as a liar. Mussrove, 178 Mont. at 172, 582 P.2d 

### at 1253, 

### In 1985, 

### subsequent to theMussrove case,we adopted thepresent Rules of Professional Conduct. As they apply to this particular question, Rule 3.4 provides in part: A lawyer shall not: (e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be 

### supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of 

### a cause, 

### the credibility of a witness, 

# . . . or 

### the quilt or innocence of an accused; 

# . 

# . 

# . (Emphasis supplied.) We concludetheRule stated inMussrove 

### is as viable under the

new Rules of Professional Conduct as it was under the old Code of Professional Responsibility. Here, the prosecutor stated hispersonal opinion on the credibility of the witnesses aswell as the guilt of the accused. Clearly this is improper. Because we are reversing on other grounds, we do not find it necessary to decide whether the statements by the prosecutor were

so prejudicial as to deprive Stewart of a fair trial. However, because of the concern by all members of the Court with regard to this type ofprejudicial and improper statement,we have carefully reviewed the closing argument. We recognize this case is somewhat unusual in that aqreatdeal of the evidence submittedby the State was directly contradictedby evidence submittedby thedefense. It

was the task of the jury to determinewhich testimony and evidence

was the more believable. 

### As a result, it undoubtedly was proper for theprosecution to comment on the contradictionsand conflicts in the testimony. To that extent, the conduct of the prosecution

was appropriate. However, the prosecution went far beyond the boundaries of appropriate comments by the prosecution. Unfortunately this 

### is not the first case to come before the Court in recentmonths in which theprosecution has yielded to the temptation tomake unfair and prejudicial comments to a jury. We direct 

### this comment to all prosecutors: stop the expression of a personal opinion as to the credibility of a witness or theguilt or innocence of a defendant. Reversed and remanded for 

### furtherproceedings consistent with this opinion.

We Concur: 

# -

Chief Justice

### June23, 1992 CERTIFICATEOFSERVICE 

### Iherebycertifythat thefollowingorderwas sentbyUnitedStatesmail,prepaid, tothe followingnamed:

DONALDL.SHAFFER Attorneyat

### Law 502 MainStreet Libby, MT 59923

James

### H.Goetz GOETZ,MADDEN&

### DUNN 35

### N. Grand Bozeman, MT 59715 MartinR.Studer AttorneyatLaw 12N.

### ThirdAve.,Suite,

### 1 Bozeman,MT59715 HON. MARCRACICOT,AttorneyGeneral MikeWellenstein, Assistant JusticeBuilding Helena,

### MT 59620 SCOTTB.SPENCER,Lincoln CountyAttorney LincolnCountyCourthouse 512California Avenue Libby, MT59923 EDSMITH CLERKOFTHESUPREME COURT STATE

### OFMONTANA