No. 13682 IN THE SUPREME COURT OF THE STATE OF MONTANA 1978

THE STATE OF MONTANA,Plaintiff and Respondent,

-vsJOSEPH E. BABELLA, Defendant and Appellant.

Appeal from: District Court of the First Judicial District, Honorable Gordon R. Benett, Judge presiding. Counsel of Record: For Appellant: Peter M. Meloy argued, Helena, Montana For Respondent: Hon. Mike Greely,Attorney General, Helena, Montana Charles A. Graveley argued, County Attorney, Helena,

Montana

Submitted: June 6, 1978 Decided:

### JUL 

# .,l37Q Filed: 

### ,ju$- 

### ;-, 

## YjTFMr. Justice Gene B. Daly delivered the Opinion of the Court.

his is an appeal from a judgment inthe District Court, ~ewis and Clark County, entered upon a jury verdict convicting defendant of the crime of obstructingjustice, in violation of section 94-4-303 (2)(a)

## , R.C.M. 1947. On October 2, 1976, the Lewis and Clark County Sheriff'sDepartment received information that one Duffy Chevallier, wanted by police for the alleged commission of two felony offenses, waspresent atthe residence at2952 Flamingo Drive, Helena, Montana. Two members of the Lewis and Clark County sheriff's auxiliary, Harold Watson and Larry Heigh, approached the residence and knocked on the door. Deputy Watson was metat the door by Toni Mallary. Deputy Watson testified he identifiedhimself as an officer and statedhe had a warrant for the arrestof Chevallier. Toni Mallary indicated she had not seen Chevallier for a couple of weeks. Deputy Watson further testified thatdefendant, Joseph Babella, was inside theresidence and approximately one foot away from him at the timehe stated he was looking for and had a warrant for the arrestof Chevallier. Both Toni Mallary and defendant denied seeing Chevallier. Subsequently, the officers, inchecking the surrounding area, noticed Chevallier peeking outof a window inthe residence. The officerscalled for assistance. Upon the arrivalof Sheriff Rick Westlund and Lieutenant ~ichard Hammerbacker, a searchof the trailerwas conducted. At trial, Hammerbacker testified he alsoindicated to~oni Mallary and defendant thathe had a warrant for the arrestof Chevallier. However, neither offered information that Chevallier was, infact, within the residence. During the search, Chevallierwas discovered hiding under a couch in the livingroom. Both Toni Mallary and defendant testified they were never informed, by the officers or otherwise, that there existed a warrant for the arrest of Chevallier, or thathe

was wanted by police. Prior totrialdefendant submitted a motion inlimine seeking toprevent the introduction of evidence: 

## "** * of defendant's conviction of theft of a motor vehicle which occurred inthe state of Michigan for the following reasons: "1. That atthetimeof the offense defendant was a juvenile and nearly tenyears have passed;

### " The DistrictCourt denied themotion, stating: "THE COURT: Okay. As totheMotion in Limine filedherein, the firstpart thereof, asking that any reference tothe conviction of theft to a motor vehicle inthe state of Michigan is denied tothisextent. The County Attorney may ask a singlequestion in regard tothe record of the Defendant and that is, whether ornot he has been previously convicted of a felony. Hemay not go further save and except inthe event that Defendant's character isput inissueby the defendant himself. 

## * * 

## *" Upon cross-examination of defendant by the State, defendantwas asked whether he had ever been convicted of a felony. Defendant responded, "Yes, I have." Defendant, on this appeal, contests thepropriety of his impeachment on thebasis of a prior felony conviction, arguing thathis motion inlimine should have been granted. On appeal, defendant raises the following issue: Was it reversible error toadmit evidence of defendant's prior felony conviction?Defendantbases his contention of error on the grounds that (a)the prior felony convictionwas too remote in time; (b) itoccurredwhile he was a juvenile; and (c) the District Court failed to exercise its discretion as to whether to grant or deny themotion in limine. The thrust of defendant's argument is that a conviction, remote in time and occurring while a defendant is a juvenile, should not be permitted to be used in the impeachment of a defendant. The sole mention in the record of the remoteness or juvenile nature of defendant's prior Michigan conviction appears in defendant's motion in limine, where the allegation is made that the prior convictionwas almost ten years old at the time of trial, atwhich time defendant was a juvenile. Defendant submitted no proof to support these allegations. While not before the District Court at the time of the denial of themotion, the presentence investigation indicates the particular conviction referred to by defendantwas six years old at the time of trial and that defendantwas tried and convicted as an adult, being 19 years of age at the time. Further, the report indicates that defendant was convicted of a felony 

### - in Montana 

### -- in 1972, a mere four years prior to trial, atwhich time defendant was 21 years of age. Clearly, if a defendant ismaking a motion to exclude evidence because of its potential prejudice and absence of probative value, he should be required to make some kind of showing to back itup. Thus, there is no issue of remoteness or of a juvenile conviction before this Court, as the factsdo not support it. Defendant first argues that a defendant's conviction too remote in time cannot be used to impeach his credibility at a subsequent trial.It is settled law in Montana, prior to the effective date of the new Rules of Evidence, that evidence of a prior conviction established by examination of the witness or by record of judgmentmay be introduced for the purpose of impeaching thatwitness. Section 93-1901-11,R.C.M. 1947; State v. Gafford, (1977), Mont. 

## , 563 P.2d 1129, 34 St.Rep. 313; Statev, Romero, (1973), 161Mont. 333, 505 P.2d 1207; State v. Coloff, (1951),125Mont. 31, 231 P.2d 343. While there is no authority in Montana resolving the question of the effect of the remoteness of prior conviction

on its probative value and potential for giving rise to prejudice, the facts show defendant 19 years of age and not

a juvenile. Defendant relies primarily upon an Illinois decision for the rule that admissibility of evidence of prior convictions iswithin the discretion of the trial judge only if

a period of less than ten years had elapsed since the later of the date of conviction or the release of the witness from confinement;beyond ten years, the trial judge iswithout discretion to permit evidence of the prior conviction. People v. Montgomery, (1971),47 I11.2d 510, 268 N.E.2d 695. Other jurisdictions, however, hold that regardless of the age of the prior conviction, thematter is within the sound discretion of the trial court. State v. Landrum, (1975), 25 Ariz.App. 446, 544 P.2d 270; Martin 

### v. Commonwealth, (Ky. 1974), 507 S.W.2d 485; People v. Wingo, (19731, 34 Cal.App.3d 974, 110 Cal.Rptr. 448; Rascon v. State, (Tex. 1973), 496 S.W.2d 99. Yet other jurisdictions permit introduction of evidence of prior convictions regardless of their remoteness,holding the age of the conviction goes to the weight of the evidence,not its competence. Hall v. State,(Ind. 1976), 339 N.E.2d 802; State v. Bergen, (1975), 13 Wash.App. 974, 538 P.2d 533; Peoplev. Sinclair, 30 Mich-App. 473, 186 N.W.2d 767. Thematter is one of discretion on the part of the trial judge, and we find no abuse of discretion. Defendant further contends that a juvenile court judgment cannot be used to impeach the credibility of a witness, citing the general rule in this regard. 63ALR3d 1112, 83; Rivas v. State, (Tex. 1973), 501 S.W.2d 918;Banas v. State,

(1967), 34 Wis.2d 468, 149 N.W.2d 571, cert.den. 389 U.S. 962, 88 S.Ct. 346, 19 L Ed 2d 373; People v. Gomez, (1957), 152Cal.App.2d 139, 313 P.2d 58. Here, however, defendant had a prior conviction inMontana when over the age of 21 years. Defendant last argues that the trial judge, in denying the motion in limine,did somechanically and without an exercise of discretion, contrary to the general rule referred to by Justice Shea in his dissent in State v. Gafford, supra. Defendant urges the convictionbe reversed on this ground as well. The record in this case is bare of facts tending to supportdefendant's argument. However, it is logical to presume thatwhen a court isvested with discretionary power regarding determination of an evidentiarymatter, a decision

on the matter is an exercise of discretion. The question then becomes whether the courtabused its discretion under the facts of the case. Defendant does notmake this argument. We find no abuse of discretion. The conviction is affirmed.We Concur: 

# DSA,4,Bsf%~ Chief Justice

Justices