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: District Court of the Nineteenth 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. Marc Racicot, Attorney General, 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 

Clerk 
Justice 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 scope of 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 

Insurance Corporation (FDIC) of its lien on the vehicle. The count 

of attempted theft arises from Stewart submitting a fraudulent 

claim to the Highway Department for window damage to the Bronco 

which he alleged occurred in a highway construction area. Finally, 

the forgery count is based on Stewart signing Hicks' name on a 

statement Stewart submitted to the Highway Department in connection 

2 
with 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 storage bill, and filed a storage lien on the 

Bronco. Because the lien exceeded the value of the vehicle, 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 that he never negotiated with 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 July 
1989, 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 statement he submitted to the Highway Department 

in connection with 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 discretion by 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 to 
fabricate 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 the Montana Constitution. This Court has previously 

held that limiting the scope of cross-examination does not 

necessarily violate 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 by 
excluding 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. 

Later during the trial, Stewart called Ms. Peterson to impeach 

Hicks1 testimony. Peterson testified that she had 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 exclusion of testimony 

presented to impeach Hicks was prejudicial 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, 

the State impeached Kenslerls testimony by introducing a previously 

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 State did not violate 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 following material and information 

within his possession or control: 

(a) a list of the names 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 court did not abuse its discretion in allowing the 

State to introduce a previously undisclosed tape to impeach Kensler 
on rebuttal. 

IV 

Was Stewart denied his right to effective assistance of 

counsel? 

To sustain a claim of ineffective assistance of counsel, 

defendant must 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 a body shop in Troy, 

Montana, testified that prior to his negotiations with Bales, 

Stewart solicited a fraudulent damage estimate from them for the 

purpose of filing a mechanic'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 ~ingley and 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 from Wilfred and Faye Palmer was 

properly admitted, not as evidence of other crimes, but as part of 
the 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 failure to 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 like and make false 

claims. They shouldn't be involved in making false 

claims because more than anything, it destroys the public 

trust. 

You want a crooked cop. this is a crooked cop and he 

was causht. And the only way that you, 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 

you have heard in these sorts of cases based on what you 

have heard here is you are guilty of theft on the Bronco . . . Mr. Stewart, he is Mr. Stewart, Mr. Stewart, you are 

a crook. You are quiltv. (Emphasis added.) 

This Court discussed improper comments by the prosecution in 

State v. Musgrove (1978), 178 Mont. 162, 582 P.2d 1246. That case 
involved an interpretation of Disciplinary Rule No. 7-106(C), 

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

In appearing in his professional capacity before a court, 

a lawyer shall not: 

(4) Assert his personal opinion as to the justness 

of a cause, as to the credibility of a witness, 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, they may argue and comment upon the law 

of the case in the instructions, as well as upon the 

evidence of the case. . . . [However, that permission is 

limited.] . . . It is enough to say that in most 

instances, it is highly improper for an attorney 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 the Mussrove case, we adopted the present 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 conclude the Rule stated in Mussrove is as viable under the 

new Rules of Professional Conduct as it was under the old Code of 

Professional Responsibility. Here, the prosecutor stated his 
personal opinion on the credibility of the witnesses as well 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 of prejudicial and improper statement, we have carefully 

reviewed the closing argument. We recognize this case is somewhat 

unusual in that a qreat deal of the evidence submitted by the State 

was directly contradicted by evidence submitted by the defense. It 

was the task of the jury to determine which testimony and evidence 

was the more believable. As a result, it undoubtedly was proper 

for the prosecution to comment on the contradictions and 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 recent months in which the prosecution has yielded to the 

temptation to make 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 the guilt or 

innocence of a defendant. 

Reversed and remanded for further proceedings consistent with 

this opinion. 

We Concur: 

Chief Justice 

- 

June 23, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

DONALD L. SHAFFER 

Attorney at Law 

502 Main Street 

Libby, MT 59923 

James H. Goetz 

GOETZ, MADDEN & DUNN 

35 N. Grand 

Bozeman, MT 59715 

Martin R. Studer 

Attorney at Law 

12 N. Third Ave., Suite, 1 

Bozeman, MT 59715 

HON. MARC RACICOT, Attorney General 

Mike Wellenstein, Assistant 

Justice Building 

Helena, MT 59620 

SCOTT B. SPENCER, Lincoln County Attorney 

Lincoln County Courthouse 

512 California Avenue 

Libby, MT 59923 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA